SCA/8301/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8301 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 ? ========================================================= RATILAL BHAGWANBHAI SOLANKI (ROHIT) & 3 - Petitioner(s) Versus DISTRICT COLLECTOR & 2 - Respondent(s) ========================================================= Appearance : MR KK TRIVEDI for Petitioner(s) : 1 - 4. MR JASWANT K SHAH, AGP for Respondents ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 19/06/2008 ORAL JUDGMENT 1. Rule. Mr.Jaswant K.Shah, learned Assistant Government Pleader, waives service of notice of Rule on behalf of the respondents. In the facts SCA/8301/2008 2/7 JUDGMENT 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) Your Lordships may` be pleased to admit this petition. (B) Your Lordships may be pleased to issue a writ in nature of mandamus or writ in nature of certiorari or any other appropriate, writ/s order/s, and/or direction/s quashing and setting aside the undated notice (Annexure-A) issued by the respondent no.1 on 24.05.2007. (C) Pending admission hearing and final disposal of this petition, Your Lordship may be pleased to grant interim/ ad-interim relief/ staying the operation, implementation and execution of the undated notice (Annexure-A) issued by the respondent no.1 on 24.05.2007. (D) Your Lordships may be pleased to pass any such other and/or further order/s, thought just and proper, in the interest of justice.” SCA/8301/2008 3/7 JUDGMENT 3. Briefly stated, the facts of the case are that the petitioners are the original owners and in possession of the land bearing Block No.216, Old Revenue Survey No.172/1-2-3 of Village: Ran Kuva, Taluka: Chikhli, District: Navsari, admeasuring approximately 2630 Sq.Mtrs. (hereinafter referred to as the land in question). The respondent No.3, i.e. the Mamlatdar and ALT, Chikhli, passed an order dated 17.10.2002, annexed as Annexure-B to the petition in Tenancy case No.70-O/47/2002 under Section 70(o) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “the Act” for short), declaring that the petitioners are occupying the land in question as permanent tenants. The restrictions under the provisions of Section 43 of the Act were removed by the respondent No.3 and the Mutation Entry No.3442 was entered in the revenue records to this effect, which was certified on 2.12.2002. A copy of the same is annexed as Annexure-C to the petition. Thereafter, the petitioner No.4 purchased the SCA/8301/2008 4/7 JUDGMENT land in question from the petitioners No.1, 2 and 3 by way of a registered Sale Deed No.202 dated 20.2.2003, a copy of which is annexed as Annexure-D to the petition. The name of the petitioner No.4 was entered in the revenue records by Mutation Entry No.3493 dated 16.3.2003, a copy of which is annexed as Annexure-E to the petition. 4. The case of the petitioners is that the respondent No.2 has not challenged the order dated 17.10.2002 (Annexure-B to the petition) passed by the respondent No.3 till date. However, the State Government issued a Circular dated 7.10.2005, empowering the District Collector (respondent No.1) to decide the cases under the provisions of Section 43 of the Act. Pursuant thereto, the District Collector issued an undated notice on 24.5.2007 (Annexure-A to the petition) stating that the respondent No.3, i.e. the Mamlatdar and ALT, Chikhli, had no authority to decide the question of permanent tenancy but the said power has been vested with SCA/8301/2008 5/7 JUDGMENT him in view of the Circular dated 7.10.2005. It is also the case of the petitioners that the 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 issued by the respondent No.1 on 24.5.2007 (Annexure-A to the petition), pursuant to the Circular dated 7.10.2005 and have, therefore approached the Court by filing the present petition. 5. I have heard Mr.K.K.Trivedi, learned counsel for the petitioners and Mr.Jaswant 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 notice dated 24.5.2007 SCA/8301/2008 6/7 JUDGMENT makes it clear that it is issued by placing reliance upon the Circular dated 7.10.2005, which has already been quashed and set aside by this Court vide judgment dated 17/18/23.01.2007 rendered in Special Civil Application No.9609 of 2006. 7. Mr.Jaswant 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. 8. Be that as it may, the fact remains that the judgment of this Court dated 17/18/23.01.2007 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 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 SCA/8301/2008 7/7 JUDGMENT been restored, it cannot be made applicable to the case of the petitioners. 9. In view of the above facts and circumstances, the notice issued by the respondent No.1 on 24.5.2007 (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 of the Mamlatdar and ALT dated 29.10.2002, if otherwise permissible in law. 10.The petition is disposed of in the above terms. Rule is made absolute. There shall be no orders as to costs. (Smt.Abhilasha Kumari, J.) (sunil)