SCA/8435/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8435 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 ? ========================================================= THAKORBHAI MAKANBHAI PATEL & 5 - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR KK TRIVEDI for Petitioner(s) : 1 - 2, 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5, 2.2.6,2.2.7 - 6. MR JK SHAH ASSISTANT GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 5. ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 24/06/2008 ORAL JUDGMENT 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 SCA/8435/2008 2/6 JUDGMENT case, and with the consent of the learned counsel for the parties, the matter is taken up for final hearing today. 2. This petition has been filed by the petitioners with the following prayers:- [A] Your Lordship 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 notice issued by the respondent no. 2 dated 13.09.2006 (Annexure-A) as well as order passed by the respondent no. 2 dated 24.03.2003 (Annexure-B). [C] Your Lordship may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ/s, order/s, and/or direction/s directing the respondent no. 3 to enter the necessary mutation entry giving effect to the order dated 09.10.2002 passed by the respondent no. 5 in Tenancy Case No. 84 of 2002 (Annexure-C) in the revenue records/Village Form Nos. 6 and 7/12 of Village Adajan, Taluka City Surat, District Surat within a reasonable time which may be stipulated by this Hon'ble Court. [D] Pending, admission, hearing and final disposal of this petition, Your Lordship may be pleased to grant and ad-interim/ interim relief staying the execution, operation and implementation of the notice issued by the respondent no. 2 dated 13.09.2006 (Annexure-A) as well as order passed by the respondent no. 2 dated 24.03.2003 (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 pleased be granted in favour of the petitioners in the interest of justice.” 3. Briefly stated, the facts of the case are that the petitioners are the owners and possessors of land SCA/8435/2008 3/6 JUDGMENT bearing Revenue Survey No.11/1, 17 and 698/2 of Village Adajan, Taluka City Surat, District Surat, admeasuring about 2529 sq.mtrs., 2630 sq.mtrs. and 2125 sq.mtrs. respectively [hereinafter referred to as “the land in question”]. It is the case of the petitioners that the respondent no. 5 i.e. the Additional Mamlatdar and ALT (Tenancy) Choryasi, vide order dated 9th October, 2002 rendered in Tenancy case No. 84 of 2002 under the provisions of Section 70(O) of the Bombay Tenancy and Agricultural Lands Act, 1948 [the “Act” for short], declared the petitioners as permanent tenants, thereby removing the restrictions imposed under Section 43 of the Act. It is the case of the petitioners that the order dated 9th October, 2002, which was passed by the respondent no 5 was confirmed by the respondent no. 4 [Deputy Collector], Choryasi Prant by order dated 27th February, 2003. 4. The case of the petitioners is that the State Government has not challenged the order dated 9th October, 2002 passed by the respondent No.5 till date. However, a Circular dated 7th October, 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 13th September, 2006 to the petitioners stating that the respondent No.5 had no authority to decide the SCA/8435/2008 4/6 JUDGMENT question of permanent tenancy and that this power had been vested with the Collector, pursuant to issuance of Circular dated 7th October, 2005. The Government Circular dated 7th October, 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 7th October, 2005 as being ultra vires the provisions of the Act. The petitioners are, therefore, aggrieved by the notice dated 13th September, 2006 (Annexure “A” to the petition), which has been issued by the respondent No.1 pursuant to the Circular dated 7th October, 2005 and has therefore, approached the Court by filing this petition. 5. I have heard Mr. K.K. Trivedi,learned counsel for the petitioners and Mr. J. K. Shah,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 13th September, 2006 makes it clear that the said notice has been issued by placing reliance upon the circular dated 7th October, 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. SCA/8435/2008 5/6 JUDGMENT 7. Mr. J.K. Shah, 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 rights of a person claiming protection as a protected or permanent tenant, and whereby the Circular dated 7th October, 2005 of the State Government has been quashed and set aside, still holds the field. Since the Circular dated 7th October, 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 13th September, 2006 (Annexure “A” to the petition) insofar as it relates to the Circular dated 7th October, 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 9th October, 2002 passed by the Mamlatdar and ALT, if otherwise permissible in law. SCA/8435/2008 6/6 JUDGMENT 9. 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 24th March, 2003 (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 9th October, 2002, which will be dealt with by the respondent No.3, in accordance with law 10. 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.] /phalguni/