Decided on February 15,2021

Vrundavan Co. Operative Housing Society Ltd Appellant


BIREN VAISHNAV, J. - (1.) In this petition under Article 226 of the Constitution of India, the prayer of the petitioner reads as under: "27 (A) YOUR LORDSHIPS may be pleased to issue a writ of prohibition or any other appropriate writ, order or direction may be issued upon the learned Mamlatdar and ALT, Kalol to drop the impugned show cause notice dated ­­­­10.2020 (undated) being Ganot Case / Santej 84­C/02/2020 issued under Form­22, Rule 50 issued under the provision of Section 84(B)(1) of the Bombay Tenancy and Agricultural Land Act, 1948;"
(2.) Facts in brief are as under: 2.1 With a view to put up residential units for its members, the petitioner purchased a parcel of land being Survey No. 1343 at Santej. The land was purchased in 1982­83. The case of the petitioner is that there was no breach of Section 63 of the Gujarat Tenancy and Agricultural Land Act, 1948 (for short ' the Tenancy Act') by virtue of Section 64A of the Act. The subject land was sold by the vendors by a registered sale deed and mutation entries were posted in favour of the petitioner society which are subject matters of challenge in this Court where there is interim relief in favour of the vendors. 2.2 The case of the petitioner is that in proceedings for breach of Section 63 of the Tenancy Act which were initiated invoking provision of Section 84C of the Act, the Mamltadar held against the petitioner. On a challenge to the order, the Deputy Collector, by his order dated 09.04.1999 set aside the order of the Mamltadar in favour of the petitioner, by virtue of Section 64­A of the Tenancy Act. The challenge to the order at the hands of the vendors is pending at the Gujarat Revenue Tribunal. The challenge is made after 19 years and is pending. Those proceedings under Section 84­ C were in respect of Block Nos. 1339, 1114, 1109, 1110, 1123, 1254, 1261 and 1341. The present parcel of land being block No. 1343 was not included. Once 84C proceedings for other blocks are concluded in favour of the person, such proceeding for another parcel cannot be re­initiated once again under the garb of missing out one parcel of land.
(3.) Mr.Mehul Shah, learned Senior Advocate for Mr.Vimal Purohit, would therefore submit that the show cause notice dated ­­/10/2020 is bad. He would further factually point out that since the Deputy Collector recommended inquiry for breach of the provisions of Agricultural Lands Ceiling Act, 1960, (for short 'the Land Ceiling Act') such proceedings were under challenge and even on such count the chapter under the Land Ceiling Act has attained finality as the order of the GRT is not challenged by the State. 3.1 On the aspect of the proceedings on the civil side, the petitioner's case is that 44 suits filed before the civil court with regard to challenge to the sale deeds failed as the applications of the petitioner society under Order 7 Rule 11 of the Code of Civil Procedure were entertained and the suits were dismissed. Mr.Mehul Shah, learned Senior Advocate, would invite the attention of the court to the table at page 69 of the paper book and the order of the High Court dated 13.07.2017 (page 98) in Civil Application for condonation of delay in second appeal, wherein, this Court dismissed the delay condonation application in 7 appeals and the order was confirmed as SLPs before the Supreme Court were dismissed. 3.2 According to Mr.Mehul Shah, learned Senior Advocate, since the vendors failed at all stages, the present show cause notice has been issued in collusion by them with the Mamlatdar, under Section 84B of the Tenancy Act. The notice is without jurisdiction. The provision of Section 84­B is applicable only to transactions entered into between 15.06.1955 and 21.07.1956, whereas the present sale took place in the year 1982. The notice is issued after 35 years after registered sale deed of 1983­84. The show cause notice is therefore grossly belated. In support of his submission, Mr.Mehul Shah, learned Senior Advocate, would rely on the following decisions: * Mohamad Kavi Mohamad Amin vs. Fatima Ibrahim reported in (1997) 6 SCC 71. * State of Punjab and Ors vs. Bhatinda District Co­operative Producers Union Ltd., reported in (2007) 11 SCC 363, where the Supreme Court set aside the show cause notice as powers were exercised after an unreasonable period of 24 years. 3.3 Mr. Shah, learned Senior Advocate, would further submit that the notice is an empty formality as from the language of the notice it is clearly apparent that the authority has already taken a decision to restore the land in question to the vendors. The notice is issued with a pre­determined mind. 3.4 Mr.Shah, learned Senior Advocate, would submit that once for the other parcels of land the proceedings under Section 84­C have attained finality, second invitation of proceedings would tantamount to reviewing its earlier order. This is not maintainable. Reliance is placed on the decision reported in 2006 (2) GLR 1073, in the case of Abdul Kasim Alibhai Chauhan vs. State of Gujarat. 3.5 On the aspect of delay and unreasonable period in issuing the notice, Mr.Shah, learned Senior Advocate, relied on the decision in the case of Amitbhai Kantilal Jayswal and Ors vs. State of Gujarat, reported in 2019 e GLR 10006359 where this Court placed reliance in the decision in the case of Bhanabhai Morarbhai Solanki vs. State of Gujarat, reported in 1994 (1) GLR 822; Chandulal Gordhandas Ravodariya and Ors vs. State of Gujarat and Ors., reported in 2013 (2) GLR 1788 and Bharatbhai Naranbhai Vegda and Ors vs. State of Gujarat and Ors., reported in 2016 (2) GLR 1021. In the context of delay in exercising the powers by the authority, reliance was placed on the decision in the case of Jt. Collector Ranga Reddy Dist. and Anr vs. D. Narsing Rao and Ors. Etc. Etc., reported in (2015) 3 SCC 695. 3.6 Mr. Shah, learned Senior Advocate, relying on the decision of this Court rendered in Special Civil Application No. 23469 of 2017 in the case of Hasmukhbhai Dahyalal Soni vs. Collector­ Gandhinagar, (decided on 30.11.2018) submitted that even at the stage of a show cause notice a petition is maintainable when there is a question of limitation. He also relied on the decision in the case of Motiben Somaji v. State of Gujarat, reported in 1996 (2) GLH 22. 3.7 Mr.Shah, learned Senior Advocate, would submit that vendors are neither necessary nor proper parties though their names appear in the notice. The mentioning of them as respondents Nos. 3 to 15 in the petition is a clerical error. They are not affected parties as they have already sold the land and pocketed the consideration. Reliance was placed on the decision in Civil Application No. 3 of 2017 in F/LPA no. 1380 of 2017 and in the case of Purshottambhai Rhanjibhai Patel vs. Shivganga Farm Pvt Ltd., reported in 2018 JX (Guj) 250. The vendors would also have no locus. He placed reliance in the decision in the case of Geetaben Ishwarbhai W/o. Dhansukhbhai Patel vs. State of Gujarat, rendered in Special Civil Application No. 8115 of 2020 decided on 12.10.2020. He would rely on paras 6.1 and 6.2 of the said decision. ;

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