Gujarat High Court
Alimiya Imamali Saiyed vs State Of Gujarat Notice To Be Served ... on 29 October, 2020
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/13495/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13495 of 2020
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ALIMIYA IMAMALI SAIYED
Versus
STATE OF GUJARAT NOTICE TO BE SERVED THROUGH THE
PRINCIPAL SECRETARYREVENUE DEPARTMENT
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Appearance:
MR MTM HAKIM FOR MR R.K.MANSURI(3205) for the Petitioner(s) No. 1
MR ISHAAN JOSHI, AGP for the Respondent(s) No.
for the Respondent(s) No. 1,2,3,4,5,6,7,8
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CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 29/10/2020
ORAL ORDER
Heard learned advocate Mr.MTM Hakim for learned advocate Mr.R.K. Mansuri for the petitioner and learned Assistant Government Pleader Mr.Ishaan Joshi who appeared to assist the Court upon service of copy of the petition in advance.
2. By invoking jurisdiction of this Court under Article 226 of the Constitution, the petitioner has filed the present petition seeking a prayer to hold the proceedings under Section 73AA of the Bombay Land Revenue Code, 1879 to be illegal. It is also prayed that order dated 27th July, 2020 and the correction order dated 14th September, 2020 passed by the respondent-Deputy Collector, Jhagadiya, District Bharuch to be held illegal. The said two orders dated 27th July, 2020 and 14th September, 2020 are prayed to be set aside.
3. It appears that the area of land bearing Page 1 of 4 Downloaded on : Fri Oct 30 04:34:13 IST 2020 C/SCA/13495/2020 ORDER Survey Nos.224, 225, 226, 227, 230 and 231 situated at Village Bhimpor, Taluka Jhagadiya, District Bharuch, originally beonged to one Laxmanbhai Desaibhai and four others. The petitioner appears to have been granted permission by the said original owners to undertake mining activity on the said land, which permission was granted on 15th June, 1978 for 20 years.
3.1 After the end of the said period, it appears that the Collector, Bharuch, upon receipt of a complaint, required the Deputy Collector, Jhagadiya to undertake inquiry. The Deputy Collector thereupon commenced proceedings for breach of Section 73AA of the Land Revenue Code against the petitioner which culminated into the impugned order. Thereunder, the land came to be vested with the State Government without encumbrance for breach of the provision of Section 73AA of the Code and the petitioner is further imposed with the penalty of Rs.01,33,84,800/-.
4. Learned advocate for the petitioner raised various contentions seeking to assail the order including that under Section 69A of the Land Revenue Code, mining rights for mines and minerals and mineral produces would vest in the State Government, that there was an agreement in favour of the petitioners to undertake mining activity on the land and further that the impugned order is passed by the Deputy Collector at the instance of the Collector. It was further submitted that the Collector did not have Page 2 of 4 Downloaded on : Fri Oct 30 04:34:13 IST 2020 C/SCA/13495/2020 ORDER the authority but the District Panchayat would have powers to initiate the proceedings.
5. The impugned order itself recites that petitioner could approach by way of appeal before the Collector, Bharuch against the order passed by the Deputy Collector. In other words, the statutory appeal is available to the petitioner to challenge the order impugned in this writ petition.
5.1 As far as the grounds urged in this petition and advanced in course of submissions are concerned, all could well be urged before the Collector which is the alternative forum of appeal against the impugned order. Adverting to the aspect sought to be asserted that the Collector had addressed a letter to the Deputy Collector, therefore the order impugned was at the instance of the Collector, the same does not stand to permit the petitioner to bye-pass the remedy of appeal. As was rightly submitted by learned Assistant Government Pleader, the Collector had only forwarded the letter to the Deputy Collector to undertake inquiry under Section 73AA and to start proceedings. Neither the Collector has taken any decision nor he has applied his mind. It cannot be said that the order passed by the Deputy Collector is one influenced by the Collector.
5.2 When the remedy of appeal is available before the Collector, this Court is disinclined to entertain the petition straightway filed under Article 226 of the Constitution. It is trite that the Page 3 of 4 Downloaded on : Fri Oct 30 04:34:13 IST 2020 C/SCA/13495/2020 ORDER petitioner would not be ordinarily allowed to bye- pass the statutory remedy of appeal to permit him to invoke the writ jurisdiction beforehand. No aspects or circumstances could be pointed out which would persuade the court to entertain the petition without requiring the petitioner to avail the remedy of appeal. Even otherwise, subject matter of dispute is such that the appellate authority would be able to deal with the same properly. The petitioner has to first exhaust the alternative remedy of appeal. It will be open for the petitioner to raise all the contentions in appeal before the Collector.
6. In the aforesaid view, without going into the merits and without expressing any opinion on merits, this petition is dismissed on the ground that the petitioner has alternative remedy before the Collector of preferring appeal. The petitioner is left at liberty to avail such remedy in accordance with law.
7. With the above observations, the petition stands dismissed.
(N.V.ANJARIA, J) SINDHU NAIR/Anup Page 4 of 4 Downloaded on : Fri Oct 30 04:34:13 IST 2020