SCA/30093/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 30093 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= GULAM MUSTAFA HAJI MOHMED KHADIWALA - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR HM JADEJA for Petitioner(s) : 1, MR JK SHAH ASST GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 3. MR DHAVAL D VYAS for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 22/07/2008 ORAL JUDGMENT Learned advocate for the petitioner prays for time to file Rejoinder. Since this petition is under Article 227 of the Constitution of India, challenging the order passed by the Gujarat Revenue Tribunal, I am not inclined to take up the reply filed by the respondent No.4 on record, the request of the Counsel for the petitioner for time is therefore, turned down. SCA/30093/2007 2/5 JUDGMENT The petitioner has challenged the order dated 31.7.2006 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BS/103 of 1996. The short facts leading to the petition are as follows : The petitioner was owner of the agriculture land situated in Village Pal, Taluka – Choryasi, District – Surat. The predecessor in title of the respondent No.4 was cultivating the said land as tenant. Respondent No.4 filed Tenancy Case No.393 of 1984 before the Mamlatdar and ALT under Section 32-G of the Bombay Tenancy and Agricultural Lands (for short “the Act”). In the said proceedings, the Mamlatdar and ALT by his order dated 13.4.1985 provided that earlier in tenancy case, order was already passed in favour of the tenant and purchase price was also fixed and paid up by the tenant. Now, all the tenant-respondent is to obtain a copy of the sale certificate as per the Rules. With these observations, the Mamlatdar and ALT closed the proceedings under Section 32-G of the Act initiated by the respondent No.4. Against the said order, petitioner took no steps for nearly 10 years before moving Tenancy Appeal No.77 of 1995 before the Deputy Collector. In the meantime, however, certificate of the respondent No.4 having become deemed purchaser of the land in question, also came to be issued on 26.7.1990. This certificate has also never been challenged by the petitioner. The Deputy Collector by his order dated 19.6.1996, partially allowed the appeal of the petitioner. In the short paragraph bereft of any reason, Deputy Collector found appropriate to remand the proceedings before the Mamlatdar and ALT permitting both the parties to lead SCA/30093/2007 3/5 JUDGMENT further evidence. Apparently, no detailed reasons were recorded for condoning the delay of nearly 10 years. The respondent No.4 approached the Gujarat Revenue Tribunal which passed the impugned order on 31.7.2004. In the order, the GRT observed that before the Mamlatdar and ALT, the petitioner himself had stated that the land was being cultivated by Ratanji Govindji. and thereafter, by his son – Natverlal Ratanji i.e. Respondent No.4. He also admitted the tenancy of respondent No.4. He also admitted that he had received amount of Rs.2000/- towards purchase price and if there is any further amount, he should pay the same. On this ground, the GRT found that remand would be futile exercise and he, therefore, set aside the order of the Deputy Collector. Learned advocate Mr.Amit Thakker for the petitioner contended that the land was covered under the certificate issued under Section 88-C of the Act and therefore, the provisions contained under Section 32 A to R would not apply. He submitted that the order passed by the Mamlatdar and ALT as well as GRT were, therefore, ab initio void and the question of limitation would also not apply. In this regard, reliance was placed on the decision of the Apex Court in the case of State of Orissa and Others v. Brundaban Sharma and another reported in 1995 Supp (3) SCC 249. On the other hand, learned AGP Mr.J.K.Shah for the State and learned advocate Mr.Dhaval Vyas for the respondent No.4 opposed the petition and submitted that the GRT committed no illegality. Learned AGP, in particular, pointed out the decision of the Apex Court in the case of Pune Municipal Corporation v. State of Maharashtra reported in 2007 (3) GLR 2610 wherein the Apex Court observed that party cannot ignore the order of the Court which is null and void and such order has to be SCA/30093/2007 4/5 JUDGMENT challenged within limitation period prescribed by law or where no such limitation is prescribed, within reasonable time. Having, thus, heard learned advocates appearing for the parties, it is clear that the tenancy proceedings with respect to the subject matter land were concluded many years back. Since perhaps inadvertantly the sale certificate was not issued in favour of the tenant, respondent No.4 successor-in-title of the original tenant i.e. his son approached the Mamlatdar and ALT under Section 33-G of the Act. The Mamlatdar closed the proceeding finding that no fresh proceedings are necessary. Before the Mamlatdar also, the present petitioner categorically admitted that the land was being cultivated by the father of the respondent No.4 and thereafter, by the respondent No.4. He admitted that they have received Rs.2000/- for sale price and has also indicated his share to receive the remaining sale price, if at all. He, however, wrack up the matter after Mamlatdar's order and preferred the appeal before the Deputy Collector contending that ignoring delay even without proper condonation and without assigning any reason even for remanding the proceedings, and the Deputy Collector virtually not given any reason. In view of the above undisputed facts, I do not find that the petitioner can at this belated stage, wrack up the issue regarding the land being exempted from the application of provisions of Section 32 A to R of the Act. It is not that in the year 1985 the question of tenancy got concluded. The same had happened many years before that. No proceedings were undertaken by the petitioner with respect to the earlier tenancy case. After 1985 also, the petitioner took nearly 10 years to challenge the order of the Mamlatdar and ALT before the Deputy SCA/30093/2007 5/5 JUDGMENT Collector. In essence, before the Deputy Collector, the petitioner was denying the tenancy of respondent No.4 and proceedings initiated by his father concluded decades back. Whatever the legal contention the petitioner might have, in view of this course of inordinate delay and also in view of his own stand before the Mamlatdar that he had received the sale price substantially and his claim only for unpaid sale price, it would not be possible here to permit the petitioner to wrack-up the old concluded issue of tenancy. In that view of the matter, in the facts of the present case, I find that the observations made by the Apex Court in the case of Pune Municipal Corporation (supra) would apply. In the case of State of Orissa (supra), the Apex Court was considering the effect of delay in the Board of Revenue exercising the powers under Section 38 B of the Orissa Estate Abolition Act. It was found that the prior confirmation from the Board of Revenue though required was never obtained. It was, on this background, the Apex Court found that the order passed by the Board of Revenue was legal and brook no delay. In the result, I find no merit in the petition and the same is dismissed. Notice discharged. ( Akil Kureshi, J. ) kailash