IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3035 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
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 ?
5 Whether it is to be circulated to the civil judge ?
========================================================= DHULIBEN D/O REVABHAI MADHABHAI - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance :
MR AV PRAJAPATI for Petitioner(s) : 1, MR RONAK RAVAL AGP for Respondent(s) : 1,2 None for Respondent(s) : 3.
MR TRILOK J PATEL for Respondent(s) : 3.2.1, 3.2.2,3.2.3 ========================================================= CORAM : HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 16/10/2012 CAV JUDGMENT
1. Heard Mr.A.V. Prajapati, learned counsel for the petitioner, Mr.Ronak Raval, learned A.G.P. appearing on advance copy for respondent Nos.1 and 2 and Mr.Trilok J. Patel, learned counsel for respondent Nos.3/1 to 3/3 – Caveators.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged order dated 10.01.2012 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BA/40/2010 whereby, the Tribunal has been pleased to confirm order dated 16.11.2009 passed by the Deputy Collector (Land Reforms & Appeal), Ahmedabad in Ganot Appeal No.81 of 2008 and also order dated 28.08.1964 passed by Mamlatdar & ALT, Daskroi in Ganot Case No.160(Sola).
3. The relevant facts arising out of this petition are as under:-
3.1. The land bearing Survey No.457/1 admeasuring 0-47-55 sq.mtrs. was initially in the name of Shri Reva Madha Pakhariya Patel. It transpires from the record that Patel Reva Madha expired on 31.12.1933 and, at that point of time, the present petitioner was the only heir of deceased- Patel Reva Madha and was minor and predecessor of respondent Nos.3/1 to 3/3 – Patel Jivabhai Kuberbhai was made the guardian of the petitioner. It appears that revenue entries were also made to the said effect. It transpires that the land in question was cultivated by Shri Jivabhai Kuberbhai Patel as tenant (Ganotiya) and entry was also mutated in the revenue records being Entry No.2262. It appears from the record that the proceedings under Section 32-G of the Bombay Tenancy and Agricultural Land Act, 1948 (for short, the 'Act') were initiated by the first authority i.e. Mamlatdar & ALT, Daskroi which came to be registered as Ganot Case No.160(Sola). Shri Jivabhai expired meanwhile and his son Ambarambhai tilled the land. The said proceedings culminated into order dated 28.08.1964 whereby, Ambaram Jivabhai was declared to be the tenant. It transpires that after the said order, Mamlatdar & ALT, Daskroi accepted the price so fixed by him and purchase certificate was also issued in favour of the tenant – Shri Ambaram Jivabhai. It transpires that Entry No.3001 dated 13.06.1968 came to be mutated in favour of Shri Ambaram Jivabhai. The petitioner, claiming to be the heir of original owner, filed an appeal as provided under Section 74 of the Act challenging said order dated 28.08.1964 in the year 2008 i.e. after 44 years. The Deputy Collector, Ahmedabad vide order dated 16.11.2009, was pleased to dismiss the said appeal. It is also pertinent to note that at the time of filing of the said appeal by the petitioner, Shri Ambaram Jivabhai - original tenant had expired and the present respondent Nos.3/1 to 3/3 were made parties to the said appeal as the heirs of late Shri Ambaram Jivabhai.
3.2. Being aggrieved by the said order, the present petitioner filed revision application before the Gujarat Revenue Tribunal which came to be registered as Revision Application No.TEN/BA/40/2010.
3.3. The Tribunal, after considering the evidence on record, has been pleased to dismiss the said revision application vide impugned order dated 10.01.2012.
4. The present petition is filed challenging all the three orders as noted above.
5. Mr.Prajapati, learned counsel for the petitioner submitted that as order dated 28.08.1964 is nullity, delay of 44 years would not come in the way of the petitioner. Mr.Prajapati, learned counsel relying upon the pedigree, submitted that as the grandfather of the petitioner and respondent Nos.3/1 to 3/3 were family members, grandfather of the respondent Nos.3/1 to 3/3 was wrongly declared to be the tenant of the property in question. Mr.Prajapati, learned counsel, therefore, submitted that the proceedings under Section 32-G of the Act are wrongly undertaken, as the predecessors of the petitioner and respondents were relatives. Mr.Prajapati, learned counsel submitted that the orders below are bad and illegal and the petition deserves to be accepted.
6. As against this, Mr.Asmita Patel, learned A.G.P. has supported the orders passed by the authorities below.
7. Mr.Trilok J. Patel, learned counsel for respondent Nos.3/1 to 3/3 has denied the fact that the petitioner and respondents are belonging to the same family. Mr.Patel, learned counsel submitted that the land in question was actually cultivated by Jivabhai Kuberbhai – grandfather of the private respondents even before 1950-51 and, therefore, his name is entered into revenue record as tenant of the land vide Entry No.2262 dated 17.08.1956. Mr.Patel, learned counsel submitted that after the demise of his grandfather, name of his father-Shri Ambaram was mutated in the revenue records vide Entry No.2703 dated 31.12.1963. Mr.Patel, learned counsel submitted that, at no point of time, the petitioner has objected to said order dated 28.08.1964. However, with an intention to extract money, appeal was filed after 44 years without explaining the delay. Mr.Patel, learned counsel submitted that the Mamlatdar & ALT, Daskroi, after following procedure as prescribed under the provisions of the Act, issued certificate as provided under Section 9 of the Act and the relevant entries were mutated in the revenue record being Entry Nos.2858 dated 22.10.1965 and Entry No.3001 dated 13.06.1968. Mr.Patel, learned counsel submitted that the pedigree relied upon by the petitioner is also without any authenticity and that the same is not certified by any authority but is only a version before the notary public, that too, made on 23.12.2011. Mr.Patel, learned counsel submitted that order dated 28.08.1064 is passed on the basis of the evidence on record and is already acted upon in the year 1964 itself. Mr. Patel, learned counsel for the private respondents has also drawn attention of this Court to the compromise made in Civil Appeal Nos.45 of 1989, 47 of 1989 and 85 of 1990 dated 17.3.1994 as well as order passed on the basis of such agreed terms and the decree has been drawn in terms of agreement vide order dated 17.3.1994. It may be noted that the appellate Court has passed the following order:-
“The parties submit this agreement. It is read over to them. They admit the same voluntarily. Hence, recorded. The decree be drawn in terms of agreement. The copies of the same and the decree be kept in proceedings of R.C.A. No.47/89 and R.C.A. No.85 of 90.”
8. The appeal was filed by the petitioner in the year 2008 only with an intention to extract more money. Mr.Patel, learned counsel for the private respondents has also drawn attention of this Court to declaration dated 17.03.1994 which is signed by the petitioner wherein, issue involved in the present petition is enumerated and it is declared by the petitioner that the land in question belongs to respondent Nos.3/1 to 3/3. Mr.Patel, learned counsel has relied upon the following judgments:-
"(i) Pune Municipal Corporation V/s. State of Maharashtra & Ors. reported in 2007(3) GLR 2610;
(ii) Jadav Prabhatbhai Jethabhai V/s. Parmar Karsanbhai Dhulabhai reported in 2001(1) GLR 16;
(iii) Hansaben W/O. Bhagwanbhai Ratnabhai & Legal Guardian of Minor Sanjay & Ors. V/s. State of Gujarat & Ors. reported in 2009(2) GLR 1255;
(iv) Adambhai Sulemanbhai Desai, Chairman, Desai Co.op. Hous.Soc.Ltd., Dhandhuka V/s. State of Gujarat & Ors. reported in 2004(1) GLR 906 and;
(v) Letters Patent Appeal No.433 of 2011.”
9. Relying upon the aforesaid judgments, Mr.Patel, learned counsel contended that the appeal has been filed after 44 years and even in case, where the order is nullity, the Hon'ble Apex Court has held that the same should be challenged within a reasonable time and, therefore, Mr.Patel, learned counsel submitted that the petition is meritless and the same deserves to be rejected.
10. No other or further contentions are raised by the learned counsel for the parties.
11. It can be seen from the record of the petition, more particularly, order dated 28.08.1964 passed in Ganot Case No.160(Sola), that the proceedings under Section 32-G of the Act were initiated in relation to the land bearing Survey No.457/1 admeasuring 1 acres and 2 gunthas. It transpires that Dhuliben i.e. the petitioner herein, was the landlady and, on the death of the original tenant–Jivabhai Kuberbhai, Shri Ambaram Jivabhai, predecessor of respondent Nos.3/1 to 3/3 was declared to be the tenant. It appears that the Mamlatdar & ALT has considered the revenue record which reflects name of Shri Ambaram Jivabhai as the person tilling the land in question on tillers day. It appears that while deciding the issue whether said Ambaram Jivabhai is the tenant or not, the Mamlatdar & ALT has recorded the finding that there is no dispute between the parties as regards tenancy of the land in question. It has been averred in the affidavit-in-reply filed by respondent Nos.3/1 to 3/3 that the Mamlatdar & ALT, while dealing with Tenancy Case No.160(Sola), issued notice which was served upon the petitioner and the petitioner appeared before the Mamlatdar & ALT and accepted the predecessor of respondent Nos.3/1 to 3/3 as tenant.
12. In view of the above, the contention raised by the petitioner that entry mutated in the revenue records being Entry No.1081 wherein, Jivabhai Kuberbhai was mentioned as guardian and, therefore, he cannot be construed as a tenant, does not take the case of the petitioner any further. It is worthwhile to note that in the photocopy of the said entry (at page 30), it is mentioned that Patel Revabhai Madhabhai expired on 31.12.1933 and the said entry came to be mutated on 28.03.1934 whereas, in the typed copy of the said entry (at page 30/A of the paper book), wrong dates are mentioned i.e. 31.12.1963 and 28.03.1964. Even the date of certification of the said entry, which is mentioned as 15.05.1964, is wrongly mentioned in place of 15.05.1934. It transpires that by Entry No.2262 dated 17.08.1956, name of Jivabhai Kuberbhai, who was great grandfather of respondent Nos.3/1 and 3/3, came to be mutated as tenant, as he was cultivating the land in question on the tillers day. It transpires that after the death of Jivabhai, name of Ambaram Jivabhai came to be mutated vide Entry No.2703 dated 31.12.1963.
13. In view of the above, when the proceedings were initiated under Section 32-G of the Act by the Mamlatdar & ALT, the petitioner had become major. This fact is also evident from the order of the Deputy Collector passed in appeal filed by the petitioner under Section 74 of the Act wherein, it is clearly mentioned that the father of the petitioner–Revabhai Madhabhai died on 31.12.1933.
14. It is evident from the record that after the order passed by Mamlatdar & ALT on 28.08.1964, certificate in Form-9 was issued in the name of Ambaram Jivabhai and he also paid purchase price and accordingly, Entry No.2858 dated 22.10.1965 and Entry No.3001 dated 13.06.1968 came to be mutated. It is pertinent to note that thereafter, the dispute arose between the petitioner and predecessor of respondent Nos.3/1 to 3/3 wherein, the petitioner has filed Civil Suit No.297 of 1981 before the Civil Court, Ahmedabad (Rural) in relation to the other lands including land in question bearing Survey No.457/1. As the said suit was decreed in favour of the petitioner, the predecessor of respondent Nos.3/1 to 3/3 filed Civil Appeal Nos.45 of 1989, 47 of 1989 and 85 of 1990.
15. In the said appeals, consent terms were filed and the appellate court has been pleased to draw decree in terms of the said consent terms in the appeals vide judgment and decree dated 17.03.1994 which is produced by respondent Nos.3/1 to 3/3 along with their affidavit-in-reply. These facts are not disclosed by the petitioner before this Court.
16. The land in question is the part of said consent decree wherein, the petitioner has declared that the predecessor of respondent Nos.3/1 to 3/3 has right, title or interest over the land in question along with the other lands which were subject matter of the appeals before
declaration has been made by the petitioner in relation to the land in question and the petitioner has specifically declared that the proceeding under Section 32-G of the Act being Case No.160(Sola) was initiated and the same is decided in favour of Ambaram Jivabhai-predecessor of respondent Nos.3/1 to 3/3 and Entry No.2858 was also made. The petitioner has also declared in the said declaration that Form-9 has been issued in favour of Ambaram Jivabhai and such an entry is mutated being Entry No.3001.
17. It appears that after having been party to the said consent decree as well as having made declaration, as aforesaid, the petitioner herein has preferred appeal as provided under Section 74 of the Act before the Deputy Collector in the year 2008 challenging order dated 28.08.1964 passed by the Mamlatdar & ALT. The Deputy Collector, by impugned order dated 16.11.2009, was pleased to dismiss the said appeal predominantly on the ground that it is filed after 44 years.
18. It appears that being aggrieved by the said order, the petitioner herein has filed revision application before the Gujarat Revenue Tribunal and the Tribunal, after considering the contentions raised before it, has dismissed the said revision application.
19. In view of the above set of facts, it transpires that petitioner has, after having been party to the consent decree in the year 1994, as an afterthought, filed appeal challenging order dated 28.08.1964 after 44 years before the Deputy Collector.
20. Mr.Prajapati, learned counsel contended that respondent Nos.3/1 to 3/3 and their predecessor, more particularly, Ambaram Jivabhai, who was declared to be the tenant, have wrongly declared as tenants, as the petitioner and respondent Nos.3/1 to 3/3 belong to the same family.
21. Except bare contention, nothing is brought on record. Mr.Prajapati, learned counsel also placed reliance on pedigree affidavit signed by the petitioner dated 23.12.2011. The said pedigree is not certified by any competent authority but is merely a personal declaration made by the petitioner. Respondent Nos.3/1 and 3/3, in the affidavit-in-reply, have categorically stated that such a pedigree affidavit is neither authenticated nor legal and the same is false and concocted and have denied the said facts. Respondent Nos.3/1 and 3/3 have categorically denied about relation between the parties. It may be noted that such a pedigree is brought on record only for the first time before this Court, that too, as observed above, on 23.12.2011.
22. From the above set of facts, it transpires that the petitioner has admittedly challenged order dated 28.08.1964 after a period of 44 years. As observed by Mamlatdar & ALT in his order, notice was issued upon the petitioner and no dispute as regards Ambaram Jivabhai being tenant was raised. In addition to this, even in the civil litigation, which was filed by the petitioner against the predecessor of respondent Nos.3/1 to 3/3, the petitioner in the appeal, is party to the consent decree wherein, the land in question is included which is again backed by declaration made by the petitioner on 17.03.1994. Thus, the appeal filed by the petitioner in the year 2008 has rightly been held to be beyond the period of limitation and not within the reasonable period. In addition to this, the petitioner is also guilty of suppression of material fact of having made declaration and consent decree made in the appeals which are not disclosed in this petition.
23. As noted above, even typed copy of 7/12 extracts, which relate directly to the main issue involved in the petition, is of year 1933 and, therefore, it cannot be said that the petitioner was not aware about the proceedings before the Mamlatdar & ALT as well as in the Civil Court.
24. The Hon'ble Apex Court, in the case of Pune Municipal Corporation V/s. State of Maharashtra reported in 2007(3) GLR 2610, while examining the issue of reasonable time and while considering the revisional power under Section 34 of the Act, has observed thus:-
“27. Now, it is true that no period for revision is provided in the Act. It was, therefore, submitted on behalf of the landowners that when the legislature did not think it fit to prescribe period of limitation, such power can be exercised “at any time” and no Court by a “judicial fiat” can usurp legislative power and prescribe period of limitation. It is no doubt true that the statute does not fix period of limitation within which revisional power should be exercised under Section 34 of the Act. The legislature, in its wisdom, has not fixed period of limitation as it had empowered the State Government to exercise revisional power suo motu. In our judgment, however, only in such cases i.e. where the period of limitation is not prescribed that the concept of “reasonable time” can be invoked and power must be exercised within such period.”
25. Mr.Trilok Patel, learned counsel, relying upon the judgment of the Full Bench of this Court in the case of Jadav Prabhatbhai Jethabhai V/s. Parmar Karsanbhai Dhulabhai reported in 2001(1) GLR 16 and Pune Municipal Corporation V/s. State of Maharashtra & Ors., reported in 2007 (3) GLR 2610, has rightly contended that even in case, where the order is nullity, the same is required to be challenged within reasonable time. As can be seen from the admitted facts, the petitioner has filed appeal after 44 years in the year 2008 challenging order dated 28.08.1964. Both the authorities below have, therefore, rightly come to the conclusion that the petitioner has not challenged the order passed by the Mamlatdar & ALT within reasonable time and taking into consideration the fact that it is challenged after 44 years, have rightly dismissed the appeal and the Tribunal has also rightly confirmed the same by dismissing the main revision application.
26. As can be gathered from the facts of this case, order in favour of Ambaram Jivabhai was passed by the Mamlatdar & ALT on 28.08.1964 and said Ambaram Jivabhai was declared to be the tenant. As Ambaram Jivabhai has paid the purchase price, Form-9 was issued in his name. The said order was passed after issuance of notice to the petitioner. The contention that the petitioner and predecessor of respondent Nos.3/1 to 3/3 belong to the same family and, therefore, proceedings under Section 32-G of the Act were wrongly initiated, is neither based on any concrete evidence nor is supported by any authenticated documents and, as noted by this Court, the same is produced by way of an affidavit of pedigree dated 23.12.2011 for the first time before this Court.
27. For the forgoing reasons, this Court finds no error, much less any error of law, apparent on the face of record in the findings recorded by the Tribunal as well as the Deputy Collector (Land Reforms & Appeal), Ahmedabad. The petition is, therefore, thoroughly misconceived and meritless and the same deserves to be dismissed and is hereby dismissed. No order as to costs.
(R.M.CHHAYA, J.) Hitesh