NEUTRAL CITATION

C/SCA/4603/2016 JUDGMENT

2017:GUJHC:10837

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION NO. 4603 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE SMT. JUSTICE ABHILASHA KUMARI

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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 or any order made thereunder ?
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SHANTARAM HARIBHAI JADAV - SINCE DECEASED....Petitioner(s)
Versus
HEIRS OF JAIRAM BABABHAI CHUNARA & 15....Respondent(s)
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Appearance:
MR TATTVAM K PATEL, ADVOCATE for the Petitioner(s) No. 1 - 1.4
MS AMITA SHAH,ASST.GOVERNMENT PLEADER for Respondent No.12 - 13
DECEASED LITIGANT, ADVOCATE for the Respondent(s) No. 2.1.3.1
MR JAYDEEPSINGH RAJPUT FOR MR DHARMESH V SHAH, ADVOCATE for
Respondent No. 4
MR LALIT M PATEL, ADVOCATE for the Respondent(s) No. 4
MR N R DESAI, ADVOCATE for the Respondent(s) No. 5 - 11
MR SP MAJMUDAR, ADVOCATE for the Respondent(s) No. 5 - 11
MR. RAJ A TRIVEDI, ADVOCATE for the Respondent(s) No. 2.1.1 - 2.1.2 , 2.1.3.1.1 -
2.1.3.1.2 , 2.1.3.1.3 - 2.1.3.1.4 , 2.1.3.1.5 - 2.1.3.1.6
NOTICE SERVED BY DS for the Respondent(s) No. 1.1 - 1.10 , 3.1.1 , 3.2.1 , 12 - 13 ,
14.1 - 14.2 , 15.1 - 15.3 , 16
MR VIRAL K SHAH, ADVOCATE for the Respondent(s) No. 2.1.1 - 2.1.2 , 2.1.3.1.1 -
2.1.3.1.2 , 2.1.3.1.3 - 2.1.3.1.4 , 2.1.3.1.5 – 2.1.3.1.6
MR PERCY KAVINA, SENIOR ADVOCATE WITH MR SUNIL S JOSHI, ADVOCATE for
Respondent No.17
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI

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Date : 03/04/2017
ORAL JUDGMENT

1. Rule. Mr.Viral K. Shah, learned advocate, waives

service of notices of Rule for respondents Nos.2/1/1,

2/1/2, 2/1/3/1/1, 2/1/3/1/2, 2/1/3/1/3, 2/1/3/1/4,

2/1/3/1/5 and 2/1/3/1/6. Mr.Jaydeepsingh Rajput,

learned advocate for Mr.Dharmesh V. Shah, learned

advocate, waives service of notice of Rule for

respondent No.4. Mr.S.P.Majmudar, learned advocate

waives service of notices of Rule for respondents

Nos.5 to 11. Ms.Amita Shah, learned Assistant

Government Pleader waives service of notices of Rule

for respondents Nos.12 and 13. Mr.Sunil S. Joshi,

learned advocate waives service of notice of Rule for

newly­added respondent No.17. Though notices issued to

respondents Nos.1/1 to 1/10, 3/1/1, 3/2/1, 14/1, 14/2,

15/1 to 15/3 and 16 have been served, none has

appeared on their behalf today. On the facts and in

the circumstances of the case and with the consent of

learned counsel for the respective parties, the

petition is being heard and decided finally.

2. This petition under Article­226 of the

Constitution of India has been preferred, inter­alia,

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with a prayer to quash and set aside the order dated

03.08.2015, passed by the Mamlatdar and ALT, Dascroi,

in Case No.58/2014 and the order dated 16/23.10.2015,

passed by the Deputy Collector (Tenancy Appeals), in

Case No.ACB/TNC/Tenancy/Review/97/2015.

3. The subject­matter of the petition are the lands

bearing Survey Nos.137, 138, 142, 143, 183 and 184 of

village Odhav, District Ahmedabad (the lands in

question), which are stated to be the ancestral

properties of the present petitioners. According to

the petitioners, the lands were of new tenure. On

01.05.1982, an application was submitted to convert

the lands from new tenure to old tenure. By an order

dated 19.04.1983, passed by the City Deputy Collector,

the lands were converted from new tenure to old

tenure. One Jerambhai Bababhai Chunara, purported to

be the tenant of the lands in question, initiated

tenancy proceedings under the Gujarat Tenancy and

Agricultural Lands Act, 1948 (“the Tenancy Act”, for

short). The application was rejected by the City

Mamlatdar, Ahmedabad vide order dated 31.03.1986, by

making specific observations that the said Jerambhai

Bababhai Chunara was not a tenant of the lands in

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question, but was only a labourer, as per his own

statement. Proceedings were initiated by Jerambhai

Bababhai Chunara before the Mamlatdar and ALT who, by

an order dated 20.04.1988, declared him to be a deemed

purchaser of the lands in question since 01.04.1979.

This order of the Mamlatdar and ALT was confirmed by

the Deputy Collector, against which order a Revision

Application was preferred before the Gujarat Revenue

Tribunal (“GRT”, for short).

4. The GRT by an order dated 25.08.2000, rejected

the Revision Application filed by the petitioners. It

is the case of the petitioners that they were unaware

of the order passed by the GRT. A petition, being

Special Civil Application No.3094/2001, came to be

filed before this Court by the brothers of the

petitioners, allegedly by practicing fraud and showing

Shantaram, who was the father of the petitioners, to

be petitioner No.2, although the said Shantaram had

already died. The petition was rejected by this Court

vide order dated 30.09.2010.

5. Immediately thereafter, on 01.11.2010, a

registered Sale Deed came to be executed by the Power

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of Attorney of Jairambhai Bababhai Chunara in favour

of respondents Nos.5 to 11 which, according to the

petitioners, could not have been executed. The

petitioners filed Letters Patent Appeal No.1001/2013

before the Division Bench, challenging the order dated

30.09.2010, passed by this Court in Special Civil

Application No.3094/2001. The Division Bench passed an

order dated 27.08.2013, allowing the appeal and

setting aside the orders passed by the learned Single

Judge, as well as that of the GRT. While passing the

said order, the Division Bench remanded the matter to

the GRT for fresh decision on merits.

6. In the remand proceedings, after hearing the

parties and considering the material on record, the

GRT passed an order dated 14.10.2014, quashing and

setting aside the orders passed by the Mamlatdar and

ALT as well as the Deputy Collector. The GRT further

remanded the matter to the Mamlatdar and ALT for fresh

decision on the aspect whether Jerambhai Bababhai

Chunara was a tenant of the lands in question, or not.

Pursuant to the remand, the Mamlatdar and ALT passed

the order dated 03.08.2015, which is impugned in the

present petition. The said order of the Mamlatdar and

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ALT has been confirmed by the Deputy Collector vide

the order dated 16/23.10.2015, which is the second

order impugned in the petition. It is in the above

background that the petitioners have approached this

Court.

7. Mr.Tattvam K. Patel, learned counsel for the

petitioners, has submitted that the impugned order of

the Mamlatdar and ALT has been passed without granting

an opportunity of hearing to the petitioners, as no

notice was served upon the petitioners and the said

order has been passed behind their backs. It is

further submitted that not only is the impugned order

of the Mamlatdar and ALT violative of the principles

of natural justice, it is also without jurisdiction.

The Gujarat Revenue Tribunal has quashed and set aside

the earlier order of the Mamlatdar and ALT dated

20.04.1988. However, by the impugned order, the

Mamlatdar has himself restored and reinstated his

earlier order that has been quashed and set aside,

which aspect is beyond his jurisdiction. It is further

contended by learned counsel for the petitioners that

in the impugned order, the Mamlatdar has gone beyond

the directions issued by the GRT in the order of

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remand. The only aspect that was to be decided by the

Mamlatdar was whether Jerambhai Bababhai Chunara was a

tenant of the lands in question, or not. Instead of

that, the Mamlatdar has exceeded his jurisdiction and

has decided the validity of the registered Sale Deed

executed by Jerambhai Bababhai Chunara in favour of

respondents Nos.5 to 11.

8. With regard to the impugned order passed by the

Deputy Collector, it is submitted on behalf of the

petitioners that this order contains no reasons,

whatsoever. Without recording any reasons, leave alone

cogent reasons, the Deputy Collector has confirmed the

order of the Mamlatdar. This order has also been

passed behind the backs of the petitioners and without

granting them an opportunity of hearing. Hence, it is

submitted that both the impugned orders deserve to be

quashed and set aside.

9. It is submitted by learned counsel for the

petitioners that in the event that the Court is

inclined to set aside the orders of the Mamlatdar and

ALT and the Deputy Collector and remand the matter,

the rights of the petitioners to initiate appropriate

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proceedings with regard to the Sale Deed executed by

respondents Nos.5 to 11 in favour of respondent No.17

may not be prejudicially affected.

10. Mr.S.P.Majmudar, learned counsel for respondents

Nos.5 to 11 has submitted that insofar as the aspect

of the violation of the principles of natural justice

is concerned, the Court may pass appropriate orders.

However, the said respondents would have something to

say regarding the merits of the case and the validity

of the Sale Deed executed by Jerambhai Bababhai

Chunara in their favour, therefore, this Court may not

go into that aspect, at this stage. It is further

submitted that in the event that the Court is inclined

to set aside the order of the Mamlatdar and remand the

matter, some time­limit may be fixed.

11. Mr.Percy Kavina, learned Senior Counsel with

Mr.Sunil S. Joshi, learned advocate for newly­added

respondent No.17, submits that insofar as the quashing

and setting aside of the impugned order of the

Mamlatdar on the ground of violation of the principles

of natural justice is concerned, he would support the

stand taken by Mr.S.P.Majmudar, learned advocate for

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respondents Nos.5 to 11.

12. Mr.Viral K. Shah, learned advocate for respondents

Nos.2/1/1, 2/1/2, 2/1/3/1/1, 2/1/3/1/2, 2/1/3/1/3,

2/1/3/1/4, 2/1/3/1/5 and 2/1/3/1/6, submits that the

said respondents have no objection if the matter is

remanded back to the Mamlatdar for fresh decision.

13. Ms.Amita Shah, learned Assistant Government

Pleader for respondent No.12, Mamlatdar and ALT,

Dascroi and respondent No.13, Deputy Collector, (LR)

(Appeals), Ahmedabad, who have been joined by name,

submits that it is clear from the order of the

Mamlatdar that notices were taken out by the Mamlatar,

as this aspect is mentioned in the impugned order.

14. To this Mr.Tattvam K. Patel, learned counsel for

the petitioners submits that the order only states

that notices were taken out. Nowhere it is stated that

notices were actually issued and served. Hence, when

the petitioners have not been served with notices, it

amounts to passing the order behind their backs which

is a violation of the principles of natural justice.

15. This Court has heard learned counsel for the

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respective parties, perused the averments made in the

petition, contents of the impugned orders and other

documents on record.

16. The first and foremost aspect that is required to

be decided is whether the impugned orders are legally

sustainable or not, having been passed in violation of

the principles of natural justice. There does not

appear to be any opposition by the respondents,

insofar as this aspect is concerned. None of the

respondents have disputed the assertion of the

petitioners that the said orders were passed without

hearing the petitioners.

17. The only objection raised by the learned Assistant

Government Pleader is that in the order of the

Mamlatdar, it is mentioned that notices were “taken

out”. The impugned order of the Mamlatdar appears to be

cleverly drafted. It is stated that notices were “taken

out” but it is not stated that the notices were issued

or served. If the parties have not been served with

notices and, for that reason they are unable to appear

and make submissions, the order passed in their absence

would amount to a violation of the principles of

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natural justice.

18. An order passed behind the backs of thepetitioners

and in violation of the principles of natural justice

cannot stand. Hence, the submission advanced by the

learned advocate for the petitioners that the

petitioners have not been heard appears to be correct,

as nowhere has it been stated in the impugned order of

the Mamlatdar that the petitioners were heard.

19. Insofar as the impugned order of the Deputy

Collector is concerned, it appears to be an order

consisting of one long sentence, in which no reasons

are indicated. In the first half of the sentence, the

lands in question have been described and in the second

half of the sentence the order of the Mamlatdar is

confirmed. However, why and for what reason the Deputy

Collector considered it appropriate to confirm the

order of the Mamlatdar, is not stated. This order, as

well, does not reveal that the petitioners were heard.

The submission advanced on behalf of the petitioners

that the order has been passed behind their backs is

thus borne out from the record.

20. Considering the above facts and circumstances of

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the case and as there is an apparent violation of the

principles of natural justice in passing the impugned

orders by the Mamlatdar and ALT and the Deputy

Collector, the following order is passed :

(i) The orders dated 03.08.2015, passed by the

Mamlatdar and ALT, Dascroi in Case No.58/2014 and

dated 16/23.10.2015, passed by the Deputy

Collector in Case No.ACB/TNC/ Tenancy/Review/

97/2015, are hereby quashed and set aside. The

matter is remanded to the Mamlatdar and ALT,

Dascroi, for fresh decision on merits, in view of

the order dated 14.10.2014, passed by the Gujarat

Revenue Tribunal. All consequential legal action

taken under these orders also stands quashed and

set aside, subject to fresh orders being passed

by the authorities.

(ii) The Mamlatdar and ALT shall hear all the

concerned parties and take a fresh decision in

terms of the order dated 14.10.2014 of the

Gujarat Revenue Tribunal, in accordance with law,

within a period of three months from the date of

the first hearing. All the parties shall

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cooperate with the hearing before the Mamlatdar

and shall present themselves before him on

24.04.2017.

21. It is clarified that this order has been passed

on the ground of the violation of the principles of

natural justice and the Court has not entered into the

merits of the case. The parties are at liberty to

raise all contentions available to them on merits

before the Mamlatdar and ALT. The legal rights of the

petitioners, in order to raise objections regarding

any of the Sale Deeds executed in respect of the lands

in question, including the Sale Deed in favour of

respondent No.17, under the appropriate provisions of

law, would not be curtailed by this order. The defence

taken by respondents Nos.5 to 11 and 17 is also kept

open.

22. The petition is allowed, in the above terms. Rule

is made absolute, accordingly. There shall be no

orders as to costs.

(SMT. ABHILASHA KUMARI, J.)

Gaurav+

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