GOVERNMENT OF GUJARAT Vs. AMRAJI MOTIJI THAKOR

JUDGEMENT

(1.) In First Appeal No. 148 of 1968 the following question which arose for determina- tion has been referred to the Full Bench by M. C. Trivedi J.: Whether a notice issued by the authority under Section 202 of the Bombay Land Revenue Code (to be referred to as the Code) for dispossession without giving an opportunity to the person concerned to show-cause in a notice in violation of principles of natural justice and therefore ultra vires and bad in law ? It appears that similar question arose in Special Civil Application No.1099 of 1975 with he result that while issuing Rule in that petition he learned Judge ordered it to be heard with Firs Appeal No.148 of 1968. The facts which led the filing of First Appeal No. 148 of 1968 only may be shortly stated. That appeal arose from a decree passed in Civil Suit No. 832 of 1964 filed by the respondents against the appellant for a declaraion that the notice issued by the Deputy Collec- tor dated 17/01/1964 for taking away possession of the land in dispute was illegal; and for an injunction restraining the defendant and its servants from disturbing plaintiffs possession of he suit land which is Survey No.240 admeasuring 3 acres 34 gunthas of Asarva. The land is described as Chakariyu in the revenue records; and the plaintiffs case was that the soil of this land originally belonged to their forefathers and only its land revenue was alienated in favour of their forefathers in lieu of service as village servants useful to the Government to be rendered The defence was that the soil together with land revenue was alienated and therefore both could be resumed The trial Court by its judgment dated 10/11/1968 held that the land revenue only was alienated and not the soil Therefore the declaration and injunction prayed for wore given.

(2.) When this appeal came up for hearing before N.C.Trivedi J. on an earlier occasion the learned Judge by his order dated 2 1975 permitted amendment of the plaint by addition of some paragraphs He then directed that the trial Court should raise additional issues on the amended pleadings record additional evidence offered by the parties and certify the findings on the issues to this Court As a result of this the trial Court raised two issues one or which pertained to the challenge to Section 202 of the Code based on Article 14 of the Constitution and the other pertained to the challenge to the impugned notice inter alia on the ground that the same was in violation of principles of natural justice The question referred to the Full Bench pertains to this latter issues viz. issue No. 7 The learned trial Judge held in the negative on this point At the final hearing of this appeal M C. Trivedi J. found that D.A.Desai J. has in Special Civil Application No 500 of 1969 decided on July 10/13 -1970 held that a notice under Section 202 of the Code in itself was a decision or order and that at the stage of its service in the person to whom it is proposed to be served is not heard there was no violation of principles of natural justice because the further provision in Section 202 (paragraph 2) itself contemplates an enquiry in which such person would be entitled to be heard and must be heard This decision of D. A. Desai J. was followed by M.P.Thakkar J. on two occassions one of which was First Appeal No. 374 of 1968 decided on 18/04/1975 Against the judgment in the appeal Letters Patent Appeal No 140 of 1975 was filed Prior to that however M.C. Trivedi J. in some other matters had taken the view which would run contrary to the view taken by D. A.Desai J. because the aforesaid judgment of D.A. Desai J was not brought to his notice. The result was that there were two conflicting views before the Division Bench in Letters Patent Appeal No 140 of 1975 at the stage of admission The Division Bench ageeing with the view of D A Desai J and disagreeing with Trivedi J summarily dismissed the aforesaid Letters Patent Appeal

(3.) It was thereafter that Letters Patent Appeal No 149 of 1971 against the aforesaid judgment of D.A. Desai J. in Special Civil Application No 500 of 1968 came to be decided by J.B. Mehta J. and one of us on 15/11/1975 In that case this question was not decided because the appeal could be disposed of on another point However the Division Bench did make some observations on this question which in the opinion of Trivedi J. amounted to expression of doubt as to the correctness or otherwise of the decision of the Division Bench in the Letters Patent Appeal decided earlier Therefore he has referred the aforesaid question to a larger Bench