SCA/4424/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4424 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 ? 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 ? ===================================================== PALIBEN WD/O BABARBHAI MAVJIBHAI PATEL & 9 - Petitioner(s) Versus DISTRICT COLLECTOR - NAVSARI & 2 - Respondent(s) ===================================================== Appearance : MR KK TRIVEDI for Petitioner(s) : 1 - 10. Mr.Pathik Acharya,learned Assistant Government Pleader for Respondents ===================================================== CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 15/04/2008 SCA/4424/2008 2/7 JUDGMENT ORAL JUDGMENT 1. Rule. Mr.Pathik Acharya, 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. 2. This petition under Article 226 of the Constitution of India has been filed with the following prayers: “(A) This Honourable Court be pleased to admit this petition: (B) Your Lordships may be pleased to issue writ in nature of mandamus or writ in nature of certiorari or any other appropriate writ/s, order/s or direction/s quashing and setting aside the notice dated 09th May,2007 (Annexure “A” hereto) issued by the respondent No.1; (C ) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to grant interim/ad-interim relief staying the operation, implementation and execution of the notice dated 09th May 2007 (Annexure “A” hereto) issued by the respondent No.1: SCA/4424/2008 3/7 JUDGMENT (D) Your Lordships be pleased to pass any such other and/or further order/s, thought just and proper, in the interest of justice.” 3. Briefly stated the facts of the case are that the petitioners are the owner in possession of land bearing Block No.1990, Old Revenue Survey No.1270 of village-Degam, Taluka-Chikhali, District-Navsari, admeasuring approximately 14265 sq.mtrs (herein-after referred to as “the land in question”). The petitioners were declared as permanent tenants upon the land in question by the respondent No.3. i.e. the Mamlatdar and Agricultural Lands Tribunal, vide order dated 31-05-2002, rendered in Tenancy Case No.70- 0/26/2002, under the provisions of Section 70(0) of the Bombay Tenancy and Agricultural Lands Act, 1948 (“the Act” for short) and the restrictions imposed under the provisions of Section 43 of the Act were removed. It is the case of the petitioners that pursuant to the order dated 31-05-2002 passed by the respondent No.3, Mutation Entry No.10122 dated 13-8- 2002 was made in the revenue record. The Collector, Navsari by communication dated 02-07-2003 addressed to the State Government, expressed the opinion that SCA/4424/2008 4/7 JUDGMENT the order dated 31-5-2002 passed by the respondent No.3 is required to be confirmed. 4. The case of the petitioners is that the State Government has not challenged the order dated 31-5- 2002 passed by the respondent No.3 till date. However, a Circular dated 7-10-2005 came to be issued by the State Government, empowering the District Collector to decide the cases under the provisions of Section 43 of the Act. Pursuant thereto, the Collector issued notice dated 09-05-2007 to the petitioners stating that the respondent No.3 had no authority to decide the question of permanent tenancy and that this power had been vested with the Collector, pursuant to issuance of Circular dated 7- 10-2005. The Government 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 dated 9-5-2007(Annexure “A” to the petition), which has been issued by the respondent No.1 pursuant to the Circular dated 7-10-2005 and SCA/4424/2008 5/7 JUDGMENT has therefore, approached the Court by filing this petition. 5. I have heard Mr.K.K.Trivedi,learned counsel for the petitioners and Mr.Pathik Acharya,learned Assistant Government Pleader for the respondents and have gone through the averments made in the petition as well as the documents annexed thereto. 6. A perusal of the impugned communication dated 9- 5-2007 makes it clear that the impugned notice has been issued by placing reliance upon the circular dated 7-10-2005, which has already been set aside by this court vide judgment dated 17-18-23/01-2007 rendered in Special Civil Application No.9609 of 2006. 7. Mr.Pathik Acharya, 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: 17-18-23/1-2007 in Special Civil Application No.9609 of 2006 whereby the Court has dealt with the SCA/4424/2008 6/7 JUDGMENT 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. 8. In view of the above facts and circumstances, the notice dated 9-5-2007 (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 dated 31-05-2002 passed by the Mamlatdar and ALT, if otherwise permissible in law. 9. This petition is disposed of in the above terms. Rule is made absolute. There shall be no orders as to costs. (Smt.Abhilasha Kumari,J) SCA/4424/2008 7/7 JUDGMENT arg