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2020 Supreme(Guj) 331
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIKRAM NATH, ASHUTOSH J. SHASTRI, JJ.
Anilbhai Bhimjibhai Vachhani & Others – Appellant
Versus
State Of Gujarat & Others – Respondent
R/Letters Patent Appeal No. 225 of 2018 In R/Special Civil Application No. 2351 of 2018 With Civil Application (For Stay) No. 1 of 2018
Decided on : 18-02-2020
Advocate Appeared:
MR NV GANDHI, adv
Point of Law:
Whether the impugned order is legally sustainable or not, the appellate court is entitled to know as to what impelled the court below to pass such order in favour of one party and against the aggrieved party. We find that that this requirement is missing in the impugned order of this case and hence the interference is called for.
Headnote:
Tenancy Act - Section 63 read with Rule 36 - Appeal has been filed by appellants - original petitioners against judgment and order - Appellants are owners and occupiers and in charge of land their names have also been mutated in revenue record consisting of Originally this land was in occupation of one in capacity of a tenant by virtue of certificate granted to him of Tenancy Act later on in exercise of power - It is further case of appellants that record revealed that one had filed a money suit in court of Civil Judge against further case of appellants that said auction sale came to be challenged by widow - Judgment debtor before this Court by way of Civil Revision Application which came to be decided on - Against this Civil Appeal with Civil Appeal came to be filed before Supreme Court according to appellants and to reasonable knowledge a consent terms came to be executed and said appeals came to be disposed of by common order - Held, Court rejecting the request by authority transaction that has taken place of appellants land is now covered residential zone view of town planning scheme - Further permission has already been granted Tenancy Act - All these circumstances touch root of controversy and have not been dealt with by authority - Additionally it appears that it is not disputed that entire area is now a residential zone and land in question is surrounded by several residential societies - If that is so appears to this Court that while dealing with request of appellants at least all these pressed into service ought to have been dealt with by authority - It further appears to us that successful enough to point out that there appears to be no discussion authority has not dealt with these which entitles appellants to seek at least reconsideration and relook to grievance of appellants - Appeal allowed (Para 7)
Facts of the Case:
Old tenure land bearing Survey No.1348 admeasuring 7588 sq. mtrs. situated mouje Bavla, Taluka - Bavla, District - Ahmedabad and the appellants are the owners and occupiers and in charge of the land. Their names have also been mutated in the revenue record consisting of Form Nos.6, 7 and 8A. Originally, this land was in occupation of one Jivanji Dipaji in the capacity of a tenant by virtue of certificate granted to him under Section 32(M) of the Tenancy Act. Later on, in exercise of power under Section 63 read with Rule 36 of the Tenancy Act, the Assistant Collector, Dholka vide his order dated 7.8.1965 was pleased to grant permission to transfer/sell in favour of Ms/.Kanaiyalal Harjivandas, a partnership firm. Accordingly, a document was executed through its partners.
Finding of the Court:
Court rejecting the request by authority transaction that has taken place of appellants land is now covered residential zone view of town planning scheme - Further permission has already been granted Tenancy Act - All these circumstances touch root of controversy and have not been dealt with by authority - Additionally it appears that it is not disputed that entire area is now a residential zone and land in question is surrounded by several residential societies - If that is so appears to this Court that while dealing with request of appellants at least all these pressed into service ought to have been dealt with by authority - It further appears to us that successful enough to point out that there appears to be no discussion authority has not dealt with these which entitles appellants to seek at least reconsideration and relook to grievance of appellants.
Result: Appeal allowed
ORDER :
ASHUTOSH J. SHASTRI, J.
1. The present Letters Patent Appeal under Clause 15 of the Letters Patent has been filed by the appellants – original petitioners, against judgment and order dated 9.2.2018 passed by the learned Single Judge in Special Civil Application No.2351 of 2018.
2. The background upon which the present Letters Patent Appeal has come up for consideration is that the old tenure land bearing Survey No.1348 admeasuring 7588 sq. mtrs. situated mouje Bavla, Taluka – Bavla, District – Ahmedabad and the appellants are the owners and occupiers and in charge of the land. Their names have also been mutated in the revenue record consisting of Form Nos.6, 7 and 8A. Originally, this land was in occupation of one Jivanji Dipaji in the capacity of a tenant by virtue of certificate granted to him under Section 32(M) of the Tenancy Act. Later on, in exercise of power under Section 63 read with Rule 36 of the Tenancy Act, the Assistant Collector, Dholka vide his order dated 7.8.1965 was pleased to grant permission to transfer/sell in favour of Ms/.Kanaiyalal Harjivandas, a partnership firm. Accordingly, a document was executed through its partners. The firm purchased the said land for the industrial purpose for producing puffed and flattened rice (locally known as ‘Mamra and Poha’).
2.1 Upon payment of amount of premium at the rate of 50% of the market value and on such other terms contained therein. In view of Condition No.2, it was specifically made clear that the land in question cannot be put to use for any other purpose. Whereas Condition No.3 has stipulated that the purchaser was required to obtain prior permission from the Assistant Collector & Prant Officer, Dholka. Accordingly, entries were also posted being Entry No.6320 dated 16.8.1965 which came to be duly certified in the revenue record. On 11.8.1965, the said amount of premium was also deposited with the treasury of the Authority vide Challan No.309 dated 11.8.1965. Upon completion of such formalities and pursuant to the permission, said Jivanji Dipaji had executed a registered sale deed in favour of Ms/.Kanaiyalal Harjivandas, through its partner and administrator Kanaiyalal Harjivandas. The deed was registered before the office of Sub Registrar, Dholka at Serial no.267 on 11.8.1965. Even the names of firm as well as partners came to be entered into in the revenue record. But on account of exclusion of one partner named as Kanaiyalal Harjivandas, the firm came to be dissolved. The said name of the partner came to be deleted from the revenue record. To that effect, a mutation entry took place on 10.9.1968 being Entry no.6765 which also came to be duly certified.
2.2 It is further the case of the appellants that the record revealed that one M/s.Mansukhlal Jivanlal & Co. had filed a money suit in the court of learned Civil Judge, Dholka against one Dharamsi Vashrambhai. The said suit came to be decreed against said Dharamsi Vashrambhai vide judgment and order dated 14.9.1977 and the effect of said money decree was also mutated in the revenue record being Entry No.7855 dated 6.1.1978. By efflux of time, said Dharamsi Vashrambhai died, leaving behind widow and 7 sons. As a result of this, the execution proceedings came to be contested by widow Madhuben. As per the order passed in execution proceedings, to realize the decreetal amount, the land in question was put up for auction. The auction had taken place through the process of the civil court. One Govindbhai Balchandbhai Thakkar had purchased the present land in question. On 21.4.1992, the Court Commissioner executed a sale deed in favour of said auction purchaser i.e. Govindbhai Balchandbhai Thakkar and the said auction sale had also been mutated on 22.4.1992 being Entry No.10014 which came to be duly certified and the name of auction purchaser was reflected in the record.
2.3 It is further the case of the appellants that the said auction sale came to be challenged by the widow Madhuben – judgment debtor before t
