Gujarat High Court
Patel Bharatbhai Jayantibhai vs State Of Gujarat on 28 February, 2023
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/14538/2020 JUDGMENT DATED: 28/02/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14538 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
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 or any order made thereunder ?
==========================================================
PATEL BHARATBHAI JAYANTIBHAI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR DHAVAL N VAKIL(3556) for the Petitioner(s) No. 1,2
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
MR NV GANDHI(1693) for the Respondent(s) No. 7,8,9
NOTICE SERVED for the Respondent(s) No. 2,3,4,5
VASIM MANSURI(8824) for the Respondent(s) No. 6
==========================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 28/02/2023
ORAL JUDGMENT
1.Heard learned advocate Mr. Dhaval Vakil for the petitioners, learned Assistant Government Page 1 of 11 Downloaded on : Sun Sep 17 22:16:09 IST 2023 NEUTRAL CITATION C/SCA/14538/2020 JUDGMENT DATED: 28/02/2023 undefined Pleader Mr. Jayneel Parikh for the respondent-State and learned advocate Mr. N.V.Gandhi for respondent Nos. 6 to 9.
2.Having regard to the controversy involved in this petition, with the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing today.
3.Rule returnable forthwith. Learned AGP Mr. Parikh waives service of notice of rule for the respondent-State and learned advocate Mr. Gandhi waives for respondent Nos. 6 to 9.
4.By this petition under Article 227 of the Constitution of India, the petitioners have challenged the order dated 07.07.2018 passed by the Special Secretary (Appeals), Revenue Department ['SSRD' for short]. Page 2 of 11 Downloaded on : Sun Sep 17 22:16:09 IST 2023
NEUTRAL CITATION C/SCA/14538/2020 JUDGMENT DATED: 28/02/2023 undefined
5.Case of the petitioners is as under:
5.1 The petitioners have purchased one agricultural land bearing Survey No. Block No. 700 Paiki admeasuring 2 Hectare 65 Are 88 sq.mtrs situated at Village Simej, Tal.
Dholka, Dist. Ahmedabad by registered sale deed dated 08.06.2012 from respondent No.6. 5.2 The aforesaid sale transaction was mutated in the revenue records vide Entry No. 8526 dated 08.06.2012.
5.3 Thereafter, the Circle Officer, Dholka vide order dated 05.09.2012 has cancelled the mutated entry with a remark that "service of notice is not produced."
5.4 Against the said action of the Circle Officer, Dholka, the petitioners preferred RTS Appeal No. 309 of 2016 for cancellation of Entry No. 8526 before the Dy. Collector, Dholka.
Page 3 of 11 Downloaded on : Sun Sep 17 22:16:09 IST 2023
NEUTRAL CITATION C/SCA/14538/2020 JUDGMENT DATED: 28/02/2023 undefined 5.5 The Dy.Collector, Dholka, partly allowed the application of the petitioners vide order dated 22.09.2017 and remanded the matter back to the Mamlatdar, ALT, Dholka with a direction to reconsider the entire issue and also directed to note the order in the records of right.
5.6 It is the case of the petitioner that, the respondent No.6 took the disadvantage of the situation and entered the names of his legal heirs i.e. respondent Nos. 7 and 8 herein in the records of right of the aforesaid agriculture land. The said entry was mutated on 25.06.2013 vide Entry No. 8730.
5.7 The petitioners therefore approached the Dy. Collector, Dholka by preferring RTS Appeal No. 144 of 2013. The Dy.Collector, Page 4 of 11 Downloaded on : Sun Sep 17 22:16:09 IST 2023 NEUTRAL CITATION C/SCA/14538/2020 JUDGMENT DATED: 28/02/2023 undefined Dholka allowed the applications of the petitioners and cancelled the Entry No. 8730 vide order dated 28.03.2016.
5.8 Accordingly, the mutation entries, giving effect of the aforesaid order dated 28.03.2016, were made vide Entry No. 9012 dated 13.11.2014 and Entry No.9354 dated 04.07.2016 respectively.
5.9 Respondent Nos. 6 to 8 preferred Revision Application before the Collector, Ahmedabad challenging the order dated 28.03.2016 of the Dy.Collector, Dholka by filing LB/Revision Application No. 309 of 2016. The Collector, Ahmedabad rejected the Revision Application vide order dated 29.01.2018 confirmed the order dated 28.03.2016 of the Dy.Collector, Dholka. Page 5 of 11 Downloaded on : Sun Sep 17 22:16:09 IST 2023
NEUTRAL CITATION C/SCA/14538/2020 JUDGMENT DATED: 28/02/2023 undefined 5.10 Respondent Nos. 6 to 8 preferred Revision Application challenging order dated 29.01.2018 before the Special Secretary, Revenue Department. The SSRD vide order dated 07.07.2018 remanded the matter back to the Collector and granted status quo and directed to initiate proceedings for violation of the provisions of the Gujarat Tenancy and Agricultural Lands Act,1948 ['the Act,1948' for short].
5.11 Being aggrieved, the petitioners have preferred this petition challenging the order of the SSRD.
6.At the outset, learned advocate Mr. Dhaval Vakil submitted that as the Civil Proceedings by way of Special Civil Suits No. 109 of 2013 and 674 of 2013 are pending between the petitioners and the respondent Nos. 6 to 9, he is not inviting any reasoned order so far as Entry No.8526 is concerned. It was Page 6 of 11 Downloaded on : Sun Sep 17 22:16:09 IST 2023 NEUTRAL CITATION C/SCA/14538/2020 JUDGMENT DATED: 28/02/2023 undefined submitted that as the SSRD has held that the outcome of the civil proceedings shall be binding upon the parties and therefore,let the Entry No. 8526 be subject to such outcome of the civil proceedings. 6.1 Learned advocate Mr. Dhaval Vakil submitted that the SSRD was not within its jurisdiction to issue the instructions to initiate proceedings for alleged breach of section 63 of the Act,1948 and to pass order to maintain status quo. It was also submitted that there was no need to remand the matter back to the competent authority with a direction to take action for the alleged breach of the Act,1948.
7.On the other hand, learned advocate Mr.N.V. Gandhi for the respondent Nos. 6 to 9 and learned Assistant Government Pleader Mr. Jayneel Parikh supported the order passed by the SSRD.
Page 7 of 11 Downloaded on : Sun Sep 17 22:16:09 IST 2023
NEUTRAL CITATION C/SCA/14538/2020 JUDGMENT DATED: 28/02/2023 undefined
8.Having heard learned advocates for the respective parties, so far as order of SSRD with regard to Entry No. 8526 which was challenged by the respondents before the SSRD is concerned, the same is confirmed in view of the submissions made by learned advocate Mr. Dhaval Vakil with a clarification that the Entry No. 8526 shall be subject to final outcome of the civil proceedings pending between the petitioners and the respondent Nos. 6 to 9.
9.The observations and directions issued by the SSRD for initiation of proceedings under the Act,1948 are contrary to the provisions of section 211 of the Gujarat Land Revenue Code, 1879 [for short 'the Code,1879']. Section 211 of the Code,1879 reads as under:
"211. Power of 2 [State] Government and of certain revenue officers to call for and examine records and proceedings of subordinate officers;Page 8 of 11 Downloaded on : Sun Sep 17 22:16:09 IST 2023
NEUTRAL CITATION C/SCA/14538/2020 JUDGMENT DATED: 28/02/2023 undefined The [(State) Government] and any revenue officer, not inferior in rank to [an Assistant or Deputy Collector] or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer for the purpose of satisfying [itself or himself, as the case may be, ] as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.
The following officer may in the same manner call for and examine the proceedings of any officer subordinate to them in any matter in which neither a formal nor a summary inquiry has been held, namely, a Mamlatdar, a Mahalkari, [an] Assistant Superintendent of Survey and an Assistant Settlement Officer.
And to pass orders thereupon:-If in any case, it shall appear to the [(State) Government], or to such officer aforesaid, that any decision or order or proceedings so called for should be modified, annulled or reversed, [it or he] may pass such order thereon as [ it or he] deems fit:
[Provided that an Assistant or Deputy Collector shall not himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pass such order thereon as he may deem fit:] Page 9 of 11 Downloaded on : Sun Sep 17 22:16:09 IST 2023 NEUTRAL CITATION C/SCA/14538/2020 JUDGMENT DATED: 28/02/2023 undefined
10. On perusal of the above provision, it is clear that the powers of the SSRD would be only to call for and examine the record of inquiry of the proceedings of subordinate Revenue Officer for the purpose of satisfying as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer. The powers of the SSRD under section 211 of the Gujarat Land Revenue Code, 1879 cannot be exercised to give directions to the Revenue authority or officer to initiate proceedings under any other law.
11. In view of foregoing reasons, the impugned order passed by the SSRD is required to be modified. The order passed by the SSRD with regard to direction issued to initiate proceedings under the Act,1948 and remand of the matter and maintaining status quo are hereby quashed and set aside and the order Page 10 of 11 Downloaded on : Sun Sep 17 22:16:09 IST 2023 NEUTRAL CITATION C/SCA/14538/2020 JUDGMENT DATED: 28/02/2023 undefined passed by the Collector with regard to Entry No. 8526 is restored.
12. The petition is accordingly partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
(BHARGAV D. KARIA, J) JYOTI V. JANI Page 11 of 11 Downloaded on : Sun Sep 17 22:16:09 IST 2023