Dismissed

Heirs of Deceased Narmadaben Laxmangar v. Collector Kachchh at Bhuj

Gujarat HC20 Jun 2014SCA/907/2005

Case brief

AI extract

What is this about?

This is a writ petition under Articles 14 and 226 challenging an order denying tenancy rights to heirs of a deceased temple pujari. The court dismissed the petition, holding that permissive cultivation by temple servants does not confer tenancy rights under the Tenancy Act for land belonging to a trust.

What did the court decide?

Petition dismissed; rule discharged; no order as to costs.

Heirs of Deceased Narmadaben Laxmangar Vs Collector… — Landlord and Tenant | Gujarat HC (2014)

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C/SCA/907/2005 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION NO. 907 of 2005

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE RAJESH H.SHUKLA

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:Sd/-

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1 Whether Reporters of Local Papers NO may be allowed to see the judgment?

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2 To be referred to the Reporter or NO not?

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3 Whether their Lordships wish to see the fair copy of the judgment? NO

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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?

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5 Whether it is to be circulated to NO the civil judge?

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HEIRS OF DECEASED NARMADABEN LAXMANGAR & 6...Petitioners

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Versus

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COLLECTOR KACHCHH AT BHUJ & 2....Respondent(s)

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=======================================================
Appearance:

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MR NALIN K THAKKER for the Petitioner(s) No. 1 - 7
MR PRAFUL J BHATT for the Respondent(s) No.3,3.1-3.2
MR BHARAT VYAS for the Respondent(s) No. 1 - 2,

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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA

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Date : 20/06/2014

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ORAL JUDGMENT

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1.The present petition is filed by the petitioners

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under Articles 14 and 226 of the Constitution of
India and also under the Gujarat Land Revenue

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Page 1 of 7

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C/SCA/907/2005 JUDGMENT

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Rules, 1972 for the prayers inter alia that
appropriate writ, order or direction may be issued
quashing and setting aside the order passed passed
in Revision Application No.2/1999 at Annexure-F
and also to confirm the order passed by the
Mamlatdar, Anjar in Dispute Case No.1 of 1989. It
is also prayed that the respondent nos.1 and 2 may
be directed to take action to enter the name of
heirs of deceased, Narmadaben in the “Cultivator
Column”.

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2.Heard learned advocate, Shri Nalin Thakkar for the
petitioners and learned AGP Shri Bharat Vyas for
the respondent nos.1 and 2.

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3.Learned advocate, Shri Thakkar referred to the
papers as well as the impugned order and has tried
to submit that the forefathers of the petitioners
were appointed as erstwhile pujari of the temple.
He submitted that the land is adjacent to the
temple, which is common and controlled by the
trust known as 'Bhareshwar Mahadev Temple Trust'.
It is therefore submitted that the property though
belonged to the trust, the petitioners, who are

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the heirs of the original pujari, have been
cultivating the land and they have a right. He

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Page 2 of 7

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C/SCA/907/2005 JUDGMENT

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also submitted that the name of the respondent
no.3 has been wrongly entered, for which, he had
initiated proceedings before the revenue
authority. He submitted that the respondent no.3
has expired and in fact, the heirs of the
respondent no.3 cannot have any right, title and
interest. Learned advocate, Shri Thakkar has also
referred to the order passed by the court of
Mamlatdar at Annexure-C as well as the order
passed by the Collector and the Revenue Secretary
in the aforesaid Revision Application No.2/1999
dated 05.08.2004. He has also stated that the
petitioners have no right and they do not claim
any right in the property of the trust, however,
he has qualified his statement by saying that the
land is cultivated by the petitioners as heirs of
the erstwhile pujari and, therefore, the petition
has been filed. Learned advocate, Shri Thakkar has
also submitted that the authorities below have
totally misdirected as the issue regarding the
tenancy could be decided only by the Special
Mamlatdar and same has not been appreciated. He
therefore submitted that the present petition may
be allowed and names of the petitioners may be

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Page 3 of 7

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C/SCA/907/2005 JUDGMENT

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entered into the column of ‘Cultivator’ as prayed.

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4.Learned AGP Shri Vyas referred to the papers and
submitted that the impugned order passed by the
Secretary (Appeals) in Revision Application
No.2/1999 dated 05.08.2004 clearly refers to the
fact that the property admittedly belongs to the
Trust and without the permission of the Charity
Commissioner, no entry or modification could be
made and, therefore, no tenancy rights could be
claimed. Learned AGP Shri Vyas also submitted that
if at all the petitioners desire to claim any
right, they have to move Special Mamlatdar as
stated and in fact, the order is passed only to
remand the matter back to the Mamlatdar for
deciding the same. He has also submitted that the
Secretary in his order has also stated that even a
cultivator’s name of the Trust has to be there
even though same is used and cultivated by some
person like pujari, however, he does not get any
right and cannot claim any right even as a tenant
merely because he is permitted to remain there but
he is not a tenant in terms of the Tenancy Act.
Learned AGP Shri Vyas has also submitted that
whether a person can claim hereditary right even

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Page 4 of 7

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C/SCA/907/2005 JUDGMENT

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as a pujari is an issue, which can be decided by

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the Charity Commissioner under the provisions of
the Bombay Public Trust Act and such issue is not

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relevant. He therefore submitted that even the
petitioner cannot claim any right in the land
merely because as a pujari, he is using the land
adjacent to the temple which belonged to the
trust.

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5. In view of these rival submissions, it is required to be considered whether the present petition can be entertained or not.

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6.The submissions made by learned advocate, Shri
Thakkar are two fold; on one hand, he is making a
statement that the property/land belonged to the
trust and the petitioners are not claiming any

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right, title and interest. However, he has
qualified by staying that they are cultivating the

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land which admittedly belonged to the Trust, which
is a land adjacent to the temple. Therefore merely

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as a erstwhile pujari, if the petitioners are

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permitted to stay there and are using and

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cultivating the land does not give any right.

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Therefore, any such prayer that too in the
petition under Article 226 of the Constitution of

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Page 5 of 7

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India cannot be entertained. His further

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submission regarding the issue for the tenancy
rights can be decided by the Special Mamlatdar or

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the authority under the relevant statute like
Bombay Agricultural Tenancy Act. Therefore the
submissions, which have been made that such
tenancy rights could be decided and it could not
have been considered while passing impugned order

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by the Mamlatdar or the Collector are misconceived. In the first place, there has to be a prima facie material to justify the claim under the Tenancy Act. Admittedly, the petitioners are the heirs of the erstwhile pujari, who was permitted to stay there in the temple and were using and cultivating the land adjacent to the temple. Therefore, merely because such permissive use of the temple or the land adjacent to the temple would not justify any claim under the Tenancy Act. As rightly submitted, whether hereditary right can be claimed as also an issue which can be decided by the Charity Commissioner and, therefore, there is no question of claiming

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any right, title or interest in the land which
admittedly belonged to the trust and no tenancy

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Page 6 of 7

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C/SCA/907/2005 JUDGMENT

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right could be claimed. Therefore, the submissions
which have been made by learned advocate, Shri
Thakkar with regard to the prayers for entering
the name in the ‘Cultivator Column” in the village
form does not arise and, therefore, prayer cannot
be granted.

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7. In the circumstances, the present petition deserves to be dismissed and accordingly stands dismissed. Rule is discharged. No order as to

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costs. Interim relief, if any stands, vacated.

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Sd/-
(RAJESH H.SHUKLA, J.)

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Gautam

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Page 7 of 7

Heirs of Deceased Narmadaben Laxmangar v. Collector Kachchh at Bhuj

Case brief

What is this about?

What did the court decide?

Heirs of Deceased Narmadaben Laxmangar v. Collector Kachchh at Bhuj

Case brief

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What did the court decide?

What the court decided

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