Gujarat High Court
Krineshbhai Natvarbhai Patel vs State Of Gujarat on 19 June, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15413 of 2020
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 15413 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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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 ?
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KRINESHBHAI NATVARBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1,2,3,4,5,6,7,8
for the Respondent(s) No.
10,11,12,2,3,3.1,3.1.1,3.1.3,3.1.4,4,4.1,4.2,4.3,4.4,4.5,4.6,4.7,5,5.1,5.2,5.3,5.
4,6,7,8,9
MR. KRUTIK PARIKH, AGP for the Respondent(s) No. 1
MR HARSHADRAY A DAVE(3461) for the Respondent(s) No. 3.1.2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 19/06/2023
CAV JUDGMENT
1. By way of this petition under Article 226 of the Constitution of Page 1 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined India, the petitioners have prayed for the following reliefs:-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus and / or any other appropriate writ, order or direction quashing and setting aside the order dated 28.10.2020 passed by the learned Mamlatdar and ALT, Ghatlodiya in Tenancy Case No. City Ghatlodiya/Krushipanch/Section 63 (AD)/ Remand Ganot Case No. 312 of 2017 and be further be pleased to hold and declare that the proceedings initiated by the Mamlatdar And A.L.T. under section 63-AB and 63-AD simultaneously are without jurisdiction;
(B) Your Lordship's may further be pleased to hold and declare that the action of the part of Dy. Collector in entertaining the appeal at the behest of Vendors, examining the same on merits without considering the delay aspect and further more remanding the matter to the Ld. Mamlatdar And A.L.T. for fresh consideration on altogether new perspective and under the provision of law which was foreign to the original proceeding (original proceedings were initiated under section 84 - C for breach of section 63 of the Act and the remand proceedings were directed to be initiated under section 63-AB and 63-AD of the Tenancy Act) is ex-facie without jurisdiction;
(C) Your Lordship's may further be pleased to hold and declare that the present proceedings initiating by the Ld. Mamlatdar and A.L.T. suffers from vice of res-judicate as well as without authority of law in absence of any provision incorporated in the Bombay Tenancy and Agriculture Act, 19487 enabling/entitiling/authorizing the authority to examine as to whether a person "was" an agriculturist or not more particularly when the occupant has seized to be in ownership and possession of the subject land;
(D) Your Lordship's may further be pleased to hold and Page 2 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined declare that the present proceedings vested in the land in State govt. in absence of any provision enabling the authority acting under tenancy act more particularly under the circumstances where the last purchaser/occupant of the land is admittedly and undisputedly an agriculturist; and be further pleased to hold and declare that the proceedings are vitiated also on the ground of dealt and latches;
(E) Pending hearing and Final Disposal of this Special Civil Application Your Lordships may be pleased to stay the implementation, operation and execution of the order dated 28.10.2020 passed by the learned Mamlatdar and ALT, Ghatlodiya in Tenancy Case in Case No. City Ghatlodiya/Krushipanch/Section 63 (AD)/ Remand Ganot Case No. 312 of 2017 and further be pleased to direct the respondent authority to maintain the status quo over the land in question;
(F) Any other and further relief that may deem fit by this Hon'ble Court in the interest of justice;"
2. As can be seen from the above referred prayers made in the petition, by way of this petition, the petitioners have challenged the order dated 28.10.2020 passed by the Mamlatdar and ALT, Ghatlodiya in Tenancy Case No. City Ghatlodiya/Krushipanch/Section 63 (AD)/ Remand Ganot Case No. 312 of 2017 and has prayed for declaring the aforesaid proceedings to be without jurisdiction.
3. The matter was extensively heard on 08.02.2022 and the matter was heard only on the aspect of alternative remedy available to the petitioners and the matter was argued by learned Senior Advocate Page 3 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined Mr. Mihir Joshi with learned advocate Mr. Vimal Purohit for the petitioners and learned G.P. Ms. Manisha Lovkumar Shah with learned AGP Mr. Krutik Parikh for the State and its authority and learned advocate Mr. Mitul Shelat with learned advocate Mr. Harshadray Dave for the respondent no. 3.1.2.
4. The brief facts stated in the petition are as under:-
4.1 The present petition is preferred in respect of land bearing Survey No. 465/1 admeasuring 4452 sq. mtrs. and Survey No. 465/2 admeasuring 6070 sq. mtrs. and also about the land bearing Survey No. 471 admeasuring 11837 sq. mtrs. of Village : Thaltej, Taluka: Ghatlodiya, District:
Ahmedabad. However, the petitioners have categorically stated in paragraph no. 6 of the petition that they have restricted their claim and challenged only qua two survey numbers i.e. Survey No. 465/1 and 465/2 only which is referred to in the petition as lands in question.
4.2 The aforesaid lands in question were granted to one Panchabhai Virambhai under the provisions of section 32 G of the Bombay Tenancy and Agricultural Land Act, 1948 in Tenancy Case No. 14 of 1973 as well as Tenancy Case No. 15 of 1973 vide order dated 25.11.1973.
4.3 The aforesaid order dated 25.11.1973 were given effect vide order dated 05.01.1975 by mutation entry no. 4077 and Page 4 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined 4078. Those entries were duly certified after due process of law and tenant Panchabhai Virambhai become occupant of the lands in question.
4.4 Vide entry no. 6134 dated 08.07.1986, Panchabhai Virambhai entered the name of his family member in revenue record and thereafter, as Panchabhai expired on 16.10.1986, the name of their family members were mutated as legal heirs of Panchabhai Virambhai vide entry no. 6197 dated 17.03.1987.
4.5 In the year 1991, the legal heirs of Panchabhai Virambhai preferred an application No. 465 of 1991 before the Deputy Collector (Land Reforms) raised a grievance that the restriction under section 43 were wrongly made applicable upon them at the time of allotment of land. Vide order dated 30.10.1991, the said application was allowed and as consequence thereto orders dated 25.11.1973 passed in the Tenancy Case No. 14 of 1973 and 15 of 1973 were modified and restriction of section 43 were lifted.
4.6 On 16.09.1991, wife of deceased Panchabhai Virambhai viz. Umiyaben and three daughter Viz. Kamlaben, Hiraben and Chanchalben executed an irrevocable general power of attorney in favour of Ramanbhai Bholidas Patel and Natwarbhai Bholidas Patel by remaining personal present before the Executive Magistrate.Page 5 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023
NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined 4.7 By way of the aforesaid irrevocable power of attorney executed in favour of the Ramanbhai Bholidas Patel, the lands in question was transfer in favour of Sarasvati Smruti Kheti Sahkari Mandali Limited (now onwards referred to as SSK Ltd.), by way of registered sale deed no. 23715. As stated in the petition, the onsideration was paid to the original owners through cheques which were honored and credited in the account of the original owners.
4.8 Sarasvati Smruti Kheti Sahkari Mandali Limited is registered by virtue of registration No. KHA - 3318 dated 27.07.1979 as the said Mandali was desirous of undertaking the agriculture activities and hence, preferred an application before the Deputy Collector, Viramgam Prant seeking permission under section 63 (C) and learned Deputy Collector vide order dated 05.10.1990 granted permission to the aforesaid SSK Ltd. to purchase the agricultural land with respect to Survey No. 465/3 and on the basis of the same, the Mandali purchased the land bearing Survey Nos. 465/1 and 465/2.
4.9 The registered sale deed executed in favour of the SSK Ltd. was given effect in the revenue records vide entry no. 6985 dated 26.11.1991. The aforesaid sale was questioned by the Mamlatdar and ALT for alleged breach of section 63 of the Tenancy Act and hence Tenancy Case No. 133 of Page 6 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined 1995 and section 134 of 1995 were registered for alleged breach of section 63 (C). However, vide order dated 20.02.1997, the Mamlatdar withdrew the notice issued under section 84 (C) of the Act.
4.10 Thereafter, pursuant to the said order, Revenue Entry No. 8066 dated 20.05.1977 was mutated. In the year 1997, the SSK Limited was sub divided into five parts vide order passed by the Learned District Development Officer dated 04.02.1995 and Survey No. 465/1 and 465/2 were included in SSK Vibhag - 1 and the said order was given effect into revenue record vide entry no. 8051 dated 20.05.1997.
4.11 In the yea 1998, the aforesaid parcel of land was included in AUDA i.e. Ahmedabad Urban Development Authority and application was given for conversion of the lands in question from agricultural purpose to housing purpose. The District Registrar of Cooperative Society Ahmedabad vide order dated 12.11.1998 granted such application for conversion from agricultural purpose to housing purpose and for which entry no. 8252 dated 25.12.2000 was mutated. Thereafter, vide order dated 15.12.2001, the corrigendum order no. 5 of 2000 dated 06.11.2000 pursuant to which Tenancy Case No. 205 of 2001 as well as Tenancy Case No. 133 of 1995 were dropped by the Mamlatdar and ALT in favour of the Page 7 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined Mandali were as just and proper.
4.12 The aforesaid orders were taken into suo moto review under the provisions of section 76 A of the Act vide Review Case No. 139 of 2002 and the order passed in the Tenancy Case No. 205 of 2001 was confirmed vide order dated 04.02.2003. Thereafter, in the year 2003, the application was made before the Registrar Cooperative Society for further division pursuant to which, vide order dated 06.05.2002, the lands in question was included in Sarasvati Smruti Kheti Sahkari Mandali Limited, Vibhag - 6 and vide order dated 03.07.2003 its name was changed to Saranga Cooperative Housing Limited and the same was given effect to in the revenue record vide entry no. 9219 dated 05.01.2004 which was certified thereafter. In the year 2008, original vendors of the land preferred a Special Civil Suit No. 11 of 2008 for cancellation of registration sale deed executed in the year 1981 in favour of the petitioners and in the said suit interim relief was granted in favour of those original vendors vide order dated 07.01.2008 and status quo was directed to be maintained. However, subsequently, the order of status quo was vacated vide order dated 30.04.2011 and thereafter, Civil Suit was dismissed for default on 21.10.2019.
4.13 As stated in the petition, in the meantime, the State Page 8 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined also preferred a revision application before the Gujarat Revenue Tribunal being TEN.BA No. 14 of 2010 and challenged the order dated 12.11.1991 and 30.10.1991 passed in Tenancy Case No. 465 of 1991 and in that proceedings legal heirs of original vendors were also joined and reply was also filed. However, learned Gujarat Revenue Tribunal vide order dated 28.04.2015 rejected the aforesaid revision application.
4.14 In the meantime, the Saranga Cooperative Housing Society sold away all the land except Survey No. 465/1 and 465/2 in favour of the Chagan Bholidas Patel.
4.15 The Land bearing Survey Nos. 465/1 and 465/2 were sold by the Saranga Cooperative Housing Society Limited pursuant to the permission dated 03.04.2006 and the land was sold to the petitioners and the said transaction was mutated in revenue record vide entry no. 14249 and 14250 and the said entry was duly certified.
4.16 In the meantime, the legal heirs of the original vendors challenged the order dated 15.12.2001 passed in Tenancy Case No. 205 of 2001 before learned Deputy Collector (Land Reforms) by filing Appeal No. 80 of 2006. Said appeal was partly allowed vide order dated 27.02.2017 and while quashing and setting the aside the order passed by the Mamlatdar and ALT in Tenancy Case No. 205 of 2001, the Page 9 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined Deputy Collector directed to initiate fresh proceedings under the provisions of section 84 (C) r/w section 63 AD and remanded back the matter to the Mamlatdar and ALT for fresh consideration. Pursuant to the aforesaid order, Remand Case No. 312 of 2017 was registered and notice for hearing was issued to the parties. It is in the aforesaid proceedings that the Mamlatdar and ALT, Ghatlodia, ALT passed an order dated 28.10.2020 and held that the transaction of land were not in favour of the agriculturist and no prior permission of section 63 r/w Rule 36 were taken and therefore, he held that those transaction were in violation of section 2(2) and section 63 (i) (a) (b) (c) and therefore, the petitioners are not entitled to amended section 63 AB and section 63 AD and therefore as per the section 84 (C) of the Tenancy Act, he declared those transactions invalid and vested the land into the government, it is that order dated 28.10.2020 which is under challenge by way of this petition.
4.17 Pursuant to the notice issued by the Coordinate Bench vide order dated 22.12.2020 and as the order of status quo was directed to be maintained by the parties, the respondents appeared before this Court and the State Government has filed an exhaustive reply and some of the original vendors also appeared before this Court.
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5. Pursuant to the notice issued by the Coordinate Bench vide order dated 22.12.2020 and as the order of status quo was directed to be maintained by the parties, the respondents appeared before this Court and the State Government has filed an exhaustive reply and some of the original vendors also appeared before this Court.
6. In the affidavit in reply, the State has also taken strong preliminary objections about maintainability of the petition as the order which is challenged before this Court by way of this petition is an appeallable order before the Collector or Deputy Collector under section 74 of the Gujarat Tenancy and Agricultural Lands Act, 1948 and an order passed in the appeal by the Deputy Collector or Collector is further challengeble before the Gujarat Revenue Tribunal under section 76 of the Gujarat Tenancy and Agricultural Lands Act, 1948 and therefore, the present petition is not maintainable.
6.1 In the reply, it is stated that the lands in question was sold by Panchabhai Virambhai through power of attorney holder Ramanlal Bholidas Patel to Saraswati Smruti Sahkari Mandali Limited on 26.11.1991 for which no permission under section 63 of the Tenancy Act was obtained for transfer of the lands in question of SSK Limited. Subsequently, SSK Ltd. was sub divided into five parts and lands in question falls in SSK Ltd. Vibhag -1 and even for that also no permission under section 63 of the Tenancy Act Page 11 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined was obtained for transfer of the land from SSK Ltd. to SSK Ltd. Vibhag -1. Subsequently, SSK Ltd. Vibhag -1 preferred an application to the Assistant District Registrar Cooperative Societies seeking permission to convert the SSK Ltd. Vibhag - 1 from agricultural purpose to housing purpose which was granted vide order dated 11.11.1998, however, at that time also, no permission under section 63 of the Act was obtained. Thereafter, SSK Ltd. Vibhag - 1 was further sub divided into six parts and the lands in question was transferred to SSK Ltd. Vibhag - 6 vide order dated 06.05.2002. By way of this order, six new housing cooperative societies came into existence and though order dated 06.05.2002 clearly stats that all other required permission from the competent authorities need to be obtained by the newly created housing society, once again no permission under section 63 of the Act was obtained for transfer of lands in question for transfer of lands from SSK Housing Ltd. Vibhag -1 to SSK Housing Ltd. Vibhag -6.
6.2 In the meantime, the original owners challenged the order dated 15.12.2001 passed by the Mamlatdar and ALT whereby the proceedings under section 84 (C) were dropped and the said order was challenged by way of an appeal under section 74 of the Tenancy Act being Tenancy Appeal Case No. 80 of 2006 before the Deputy Collector, Land Reforms which was partly allowed vide order dated Page 12 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined 27.02.2017 by the Deputy Collector, Land Reforms, Ahmedabad and order dated 15.12.2001 was quashed and set aside and the matter was remanded back to the Mamlatdar and ALT for considering the dispute afresh in respect of section 84 (C) and amended section 63 (AD) and the said order has not been challenged till date by the petitioners. In the meantime, the lands in question were sold by Saranga Cooperative Housing Society to the present petitioners on 30.06.2016.
6.3 Pursuant to the remand order dated 27.02.2017 passed by the Deputy Collector, Land Reforms, the show cause notice dated 01.09.2020 was issued by the Mamlatdar and ALT to the original owners all subsequent purchasers and the present owners i.e. petitioners. On 18.09.2020, pursuant to which one of the representatives of the original owner remain present before the respondent - authorities. However, as several parties did not remain present, show cause notice was reissued on 22.09.2020. On 23.10.2020, Valakatnama was submitted on behalf of the original owners and also the petitioners. On 27.10.2020, written submissions were submitted by the original owners and the petitioners and on 28.10.2020, the impugned order was passed which is subject matter of this petition.
6.4 In the reply, it is stated by the respondent that the Page 13 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined petitioners are not the bonafide purchaser and they have approached the Court with uncleaned hands as the petitioners no. 2, 4 and 7 are sons of Bholidas Patel and remaining the petitioners are also belonged to the same family. The petitioner no. 4 was alleged power of attorney holder of the original owners and it was through the petitioner no. 4 that the land was sold to SSK Ltd, a non natural person for the first time in the year 1991 and in the year 2016, the petitioner no. 4 himself was one of the purchaser of the lands in question.
6.5 The SSK Ltd. was divided in five parts in the year 1995. The petitioner no. 2 was one of the original promoter of SSK Ltd. Vibhag - 1 to which the lands in question were transferred from SSK Ltd. and the original petitioners no. 4 and 8 were the original promoters of SSK Ltd. Vibhag -2. The SSK Ltd. Vibhag - 1 was further divided into six parts in the year 2002. The petitioner no. 6 was one of the original promoter of SSK Housing Ltd. Vibhag - 6 whereas original promoter no. 2, 3 and 7 were one of the original promoters of SSK Housing Limited Vibhag - 10. The petitioner no. 4 was Chairman of Saranga Cooperative Housing Society. Son of the petitioner no. 1 is the Secretary of Saranga Cooperative Housing Society from whom the original petitioners purchased the lands in question in the year 2016.
Page 14 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined 6.6 The above facts would indicate that the lands in question were being dealt with in an illegal manner between the members of the same family and therefore, in the reply it was alleged that the fraud was perpetuated over the past two decades and therefore, the petitioners cannot be said to be the bonafide purchasers as they are projected, more so when the petitioners are involved in chequered history of lands in question since, inception of dispute.
6.7 In the reply it is also contended that the petitioners are non natural persons and they are not agriculturist and therefore, they cannot hold the agricultural lands as per section 63 of the Act, Government Resolution dated 23.11.1998 was passed to that effect. The said Government Resolution was challenged upto the Hon'ble Supreme Court and the validity of the said Government Resolution has been upheld by the Hon'ble Supreme Court. The SSK Ltd. also being a non agriculturist, the same Government Resolution would be applicable to SSK Ltd. and therefore, also the transaction are barred by section 63 of the Act.
6.8 In the reply, it is elaborately mentioned that no permission under section 63 of the Act was obtained either by SSK Ltd. in the year 1991 or at the time of its sub division or conversion by the purchaser or transfree.
6.9 In the reply, it is also elaborately stated that the Page 15 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined proceedings under sections 63 AB and 63 AD could not have been invoked simultaneously by the respondent - Authorities. However, since, this Court is not dealing with the main matter, at this juncture, on merits and arguments were advanced by the parties only on alternative remedy, this Court has not considered the merits of the matter and therefore, contents of the reply on merits are not incorporated in this order. By submitting a detailed reply on merits as well as on the aspect of the alternative remedy, the respondents have opposed this petition and prayed for dismissal of the petition.
7. Learned Senior Advocate Mr. Mihir Joshi assisted by learned advocate Mr. Vimal Purohit made following submissions during the course of arguments for which once the arguments were concluded, written submissions were also given, those submissions are as under:-
1) Learned Senior Advocate Mr. Mihir Joshi submitted that the proceedings before the Mamlatdar were wholly without jurisdiction as the Deputy Collector's order is ex-facie illegal as vendor who has no right to challenge the aforesaid order after receiving the consideration and after having been unsuccessful in the Civil Suit filed for cancellation of sale deed as the suit has been dismissed for default.Page 16 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023
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2) Learned Senior Advocate Mr. Joshi submitted that the appeal preferred by the private respondents was entertained even though the same was filed at a belated stage after a period of five years without preferring a separate application for condonation of delay whereas the statutory powers under section 74 of the Act provided for limitation of 60 days. Learned Senior Advocate Mr. Joshi submitted that the impugned order is without jurisdiction as it expands the scope of order dated 15.12.2001 which is not permissible.
3) According to learned Senior Advocate Mr. Joshi, the order of the Deputy Collector was solely without jurisdiction since it was it contradiction to its own order dated 04.07.2003.
4) It was contended by learned Senior Advocate that the order passed by the Deputy Collector was without hearing the petitioners and the respondents and hence, the order was passed in violation of principle of natural justice.
5) Learned Senior Advocate Mr. Joshi challenged the initiation of proceedings for breach of section 84 (C) by the Mamlatdar and ALT on the ground that the same was without jurisdiction on following grounds:-
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(a) that the order of Mamlatdar and ALT was beyond the scope of remand as the original proceedings were for breach of section 63 whereas remand proceedings were to examine the breach of section 63 - AB and 63 - AD and the order passed under section 84 (C). As per the case of the petitioner though the original proceedings were filed by the vendors but in the remand order it is stated that the State is the applicant. If the State is the applicant than the suo moto powers could not have been exercised after a lapse of 24 years. The Provisions of section 63-
AB and 63 - AD could not have been applied simultaneously.
(b) In the remand proceedings, the new respondent no. 3 added who were not there in the original proceedings nor there was any application for impleadment as those as party and hence, the scope of remand proceedings have been enlarged.
(c) The provisions of section 84 (C) cannot be invoked against an agriculturist and as the petitioners are agriculturist, there is no justification coming forward for invoking the provision of section 84 (C).
6) Learned Senior Advocate Mr. Joshi relied upon following Page 18 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined judgments to justify their participation in the proceedings before the Mamlatdar and after order was passed by the Mamlatdar:-
1) In case of M/s Radha Krishan Industries V/s.
State of Himachal Pradesh and Ors. reported in 2021 (6) SCC 771
2) In case of Aghanashyam Mishra and Sons Private Limited through Authorized Signatory V/s. Edelweiss Asset Reconstruction Company Limited through Director and Ors. reported in 2021 (9) SCC 657
3) In case of State of Tripura V/s Manoranjan Chakraborty reported in 2001 (10) SCC 740
4) In case of Executive Engineer, Bihar State Housing Board V/s. Ramesh Kumar Singh reported in 1996 (1) SCC 327
5) In case of Special Director V/s. Mohm. Ghulam Ghouse reported in 2004 (3) SCC 440
6) In case of Ram and Shyam Company V/s. State of Haryana reported in 1985 (3) SCC 267
7) Learned Senior Advocate Mr. Joshi relied upon the Page 19 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined following decisions and submitted that the alternative remedy would not act as a bar in invoking the writ jurisdiction. Learned Senior Advocate Mr. Joshi relied upon following decisions:-
1) 1998 (8) SCC 1 in the case of Whirlpool Corporation vs. Registrar of Trade Mark wherein the Hon'ble Apex Court has held that in the given cases powers under writ jurisdiction can be exercised, even there is efficacious alternative remedy provided by law.
2) 2011 (3) GLR 2286 in the case of Paschim Gujarat Vij Company Limited vs. District Consumer Redressal Forum wherein it is held that in the given case powers under writ jurisdiction can be exercised, even there is efficacious alternative remedy provided by law and the litigant may not be relegated to avail alternative remedy.
3) in Civil Appeal No.5721 of 2021 in the case of Magadh Sugar & Engery Ltd. vs. State of Bihar wherein the Hon'ble Supreme Court has very recently held that in the given cases powers under writ jurisdiction can be exercised, even there is Page 20 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined efficacious alternative remedy provided by law.
4) 2021 AIR (SC) 2114 in the case of M/s. Radha Krishan Industries vs. State of Himachal Pradesh wherein the Hon'ble Supreme Court has held in the given cases powers under writ jurisdiction can be exercised, even there is efficacious alternative remedy provided by law.
5) In the decision of Ishwar Narayanbhai Patel vs. State of Gujarat rendered in Letters Patent Appeal No.1821 of 2019 wherein Hon'ble Division Bench place reliance in the case of M/s. Radha Krishan Industries vs. State of Himachal Pradesh reported in 2021 AIR (SC) 2114 has quashed and set aside the order of Ld.Single Judge holding that in case where the statutory authority has not acted in accordance with the provisions of the law or acted in defiance of fundamental principles of judicial procedure or where an order has been passed in violation of principle of natural justice, than in such circumstances, the writ court should not hesitate to entertain the writ petition, despite the fact that alternative remedy is available in law.
8) Learned Senior Advocate submitted that the order Page 21 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined passed by the Deputy Collector was bad in law on account of violation of principle of natural justice as the petitioner was neither joined nor afforded any opportunity of hearing by the learned Deputy Collector while passing the order dated 20.02.2017.
9) In support of contention that the writ petition would be maintainable against an order or proceedings which are wholly without jurisdiction, the writ petition is maintainable, learned Senior Advocate submitted that as the powers were exercised after a period of almost three decades, the orders impugned are without jurisdiction as the question of limitation is a jurisdictional question and hence, by relying upon the judgment of the Hon'ble Supreme Court in case of State of Punjab V/s Bhatinda District Co. Op. Milk Producer Union Ltd. reported in 2007 (11) SCC 363. Learned Senior Advocate submitted that the impugned order which is passed after almost three decades, after the transaction in favour of SSK Limited was took place was wholly without jurisdiction and therefore, also writ petition is maintainable.
10) Learned Senior Advocate submitted that the notice was issued for invoking the amended provisions of section 63 (A)(B) and 63 (A)(D) of the Tenancy Act, the order was passed under section 63 (i) (a) (b) (c) r/w Page 22 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined section 84 (C) of the Tenancy Act and therefore, impugned order was beyond the scope of show cause notice.
11) According to learned Senior Advocate, there is no provision under the Tenancy Act for initiating proceedings against the person who is an agriculturist.
Though, the petitioner is holding the land since 2016 by way of registered sale deed is an undisputed agriculturist and against whom there are no allegations.
12) Section 70 (a) of the Tenancy Act empowers the Mamlatdar to examine the current status of a person as to whether he was an agriculturist or not but he is not empowered to examine as to whether a person was an agriculturist or not.
13) Learned Senior Advocate then tried to answer the contentions raised by the respondents in their affidavit in reply and submitted that the respondents cannot contend that the title of the petitioners is defective as the same is not set aside till date by the competent Court.
14) As far as the contentions raised in the affidavit in reply about bifurcation of society is concerned, it was submitted that those bifurcation were done after availing the statutory permission from the competent authority Page 23 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined and those orders were never challenged nor any actions were taken against the officers for passing illegal orders and as on the basis of those orders, mutation entries were also mutated and certified, it would show that those actions and orders were endorsed after due of process of law.
15) To meet with the allegations of fraud agitated in the affidavit in reply, learned Senior Advocate submitted that since the land was a private land not a government land as also considering the fact that the transfers were endorsed by the statutory authorities of the State from time to time. It is not explained as to how and in which manner the fraud was committed and there is no FIR registered against the petitioners nor any material placed on record to support the claim of fraud. Mere the allegation of fraud after 24 years cannot be a sufficient ground to allege the fraud and to relegate the petitioners to avail the alternative remedy.
16) Learned Senior Advocate submitted that without joining the petitioner as party in the proceedings before the Deputy Collector and passing the order dated 27.07.2017, it cannot be inferred that the petitioner had knowledge about those proceedings and therefore, also the impugned order is bad and deserves to be quashed Page 24 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined and set aside.
8. By making the aforesaid submissions, learned Senior Advocate submitted that in view of the aforesaid submissions, this Court may entertain the petition despite the availability of alternative remedy as the petitioners have successfully established the violation of principles of natural justice as well as the fact that the impugned orders are without jurisdiction and prayed for quashing of the impugned orders.
9. Learned Government Pleader Ms. Shah with learned AGP Mr. Krutik Parikh and learned advocate Mr. Mitul Shelat with learned advocate Mr. Harshadray Dave for the respondents have opposed this petition and made following submissions:-
9.1 Learned G.P. as well as learned advocate Mr. Shelat submitted that the petitioners are having efficacious and effective statutory remedy against the order dated 28.10.2020 by preferring an appeal under section 74 of the Act before the Collector and Deputy Collector and such order can further be challenged by way of the revision application before the Gujarat Revenue Tribunal under section 76 of the Act. Such well established hierarchy is existence in the statue itself, the Court may not entertain this petition despite the availability of alternative remedy.Page 25 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023
NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined 9.2 Learned counsels appearing for the respondents submitted that the Hon'ble Supreme Court in case of Nivedita Sharma V/s Cellular Operators Assn. of India reported in 2011 14 SCC 337 has held that the when a statutory form is created by law for redressal of the grievance, a writ petition should not be entertained ignoring the statutory dispensation.
9.3 In respect of fraud, it was contended by learned counsels for the respondents that it was well planned scheme by the members of the same family to wrongfully deal with the lands in question and original petitioners no. 2, 4 and 7 are the sons of one Bholidas Patel and the remaining the petitioners also belonged to the same family members. It was further contended that the petitioner no. 4 who was the alleged power of attorney holder of the original owners and it was through petitioner no. 4 the lands were sold to SSK Limited a body corporate in the year 1991 and in the year 2016, the petitioner no. 4 himself was one of the purchaser of the lands in question.
9.4 It was contended that when SSK Limited was divided into five parts in the year 1995, the petitioner no. 2 was one of the original promoters of SSK Ltd. Vibhag Page 26 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined
-1 to which the lands in question were transferred from SSK Ltd. and the original petitioners no. 4 and 8 were one the original promoters of SSK Ltd. Vibhag -2. It was further pointed out that when SSK Limited Vibhag - 1 was further divided into six parts in the year 1998, the petitioner no. 6 was one of the original promoters of SSK Ltd. Vibhag - 6 to which the landss in question were transferred from SSK Ltd Vibhag -1. Original petitioners no. 2, 3 and 7 were one of the original promoters of SSK Housing Limited Vibhag - 10. Son of the petitioner no. 1 is the Secretary of Saranga Cooperative Housing Society from whom the petitioners have purchased the lands in question in the year 2016.
9.5 Upon pointing out the aforesaid facts, learned GP submitted that the aforesaid facts would indicate that the entire family was involved in illegal dealing with the lands in question and it was well thoughtfull and well established fraud which has been perpetuated over the past two decades and therefore, as the entire act is based on fraud, the delay would not come in the way of the respondents in exercising the statutory powers.
9.6 Learned G.P. Ms. Shah submitted that there was no delay in initiating the proceedings under section 84 (C) of the Tenancy Act as the proceedings under section 84 Page 27 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined (C) of the Tenancy Act which were dropped in the year 1997 were initiated in the year 2001 pursuant to the instructions of the Deputy Collector, Land Reforms in the year 2000. Thereafter, though the Mamlatdar and ALT vide order dated 15.12.2001 once again dropped the proceedings, the order dated 15.12.2001 is quashed and set aside by the Deputy Collector, Land Reforms vide his order dated 27.02.2017. The order dated 27.02.2017 has not been challenged by the petitioners and it was pursuant to the order dated 27.02.2017, the remand proceedings took place before the Mamlatdar and ALT and in that proceedings order dated 28.10.2020 was passed by the Mamlatdar and ALT and therefore, there is no fresh proceedings and hence, the aspect of delay would not come in the way of the respondents.
9.7 Learned G.P. submitted that the lands in question was purchased by body corporation in violation of section 63 though a body corporate can never be an agriculturist and a Government Resolution dated 23.11.1998 and the validity of the same has been upheld upto the Hon'ble Supreme Court.
9.8 Learned G. P. submitted that even otherwise, permission under section 63 was obtained and granted only for Survey No. 465/3 whereas SSK Limited Page 28 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined purchased the land bearing Survey No. 465/1 and 465/2 which is a different parcel of land for which SSK Limited could not have acquired the status of the agriculturist on the basis of the such permission.
9.9 In support of these submissions, she relied upon following decisions of this Court as well as of the Hon'ble Supreme Court.
(i) In the case of Gonvindbhai Somabhai Nail & Ors. vs. State of Gujarat & ors reported in 1987 SCC Online Guj 18;
(ii) In the case of State of Maharashtra & Anr. vs. Rattanlal reported in (1993) 3 SCC 326;
(iii) In the case of State of Orissa & Ors. vs. Brundaban Sharma & Anr. reported in 1995 Supp (3) SCC 249;
(iv) In the case of A.V. Papayya Sastry & Ors. vs. Govt. of A.P. & Ors. reported in (2007) 4 SCC 221;
(v) In the case of Prestige Lights Ltd. vs. State Bank of India reported in (2007) 8 SCC 449;
(vi) In the case of Uma Small Scale Industrial Co-operative Society Ltd. vs. Collector, Surat & Ors. reported in 2000 SCC OnLine Guj 585;
(vii) In the case of Commissioner of Income Tax Page 29 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined & Ors. vs. Chhabil Dass Agarwal reported in (2014) 1 SCC 603;
(iix) In the case of Mukesh Bhavarlal Bhadari & Anr. vs. UCO Bank & Anr. reported in 2016 SCC OnLine Guj 3884.
9.9.1 Relying upon the decision in the case of State of Maharashtra & Anr. vs. Rattanlal reported in (1993) 3 SCC 326, learned Government Pleader submitted that in case of fraud or suppression or omission of material facts by the land owner, the limitation of three years would start only from the date of discovery of such facts and hence by relying upon aforesaid judgments, she submitted that in the instant case as the petitioners were corporate entities and they too have played a fraud as though they were non-agriculturists and yet transferred agricultural land which amounts to fraud since the fraud was noticed within the period of limitation, the proceedings were initiated and, therefore, the same cannot be said to be after a delay of 24 years.
9.9.2 By relying upon decision in the case of State of Orissa & Ors. vs. Brundaban Sharma & Anr. Reported in 1995 Supp (3) SCC 249 also learned Government Pleader submitted that the order if passed by the authority in that case the same can be challenged even Page 30 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined after considerable lapse of time as initially the order itself was obtained by misuse or abuse of power by the authority on the basis of fraud or suppression by the concerned applicant.
9.9.3 Learned Government Pleader by relying upon the decision reported in (2007) 4 SCC 221 in the case of A.V.Papayya Sastry & Ors. vs. Govt. of A.P. & Ors. submitted that the order obtained by fraud can be questioned by exercising suo motu powers at any point of time and that exercise of powers within reasonable time would not be criteria when there are allegations of fraud.
9.9.4 By relying upon the judgment of this Court rendered in the case of Uma Small Scale Industrial Co- operative Society Ltd. vs. Collector, Surat & Ors. in Special Civil Application No.2230 of 1991 decided on 01.12.2000, learned Government Pleader submitted that when some favourable orders are obtained by resorting fraud or suppression, exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India would amount to perpetuating illegality committed by the party and, therefore, petition requires to be dismissed.
9.9.5 Learned Government Pleader thereafter relied upon Page 31 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined the decision reported in (2014) 1 SCC 603 in case of Commissioner of Income Tax & Ors. vs. Chhabil Dass Agarwal and submitted that when statutory forum is created by law for redressal of grievance, writ petition should not be entertained ignoring said statutory dispensation and submitted that there are five exceptions to that which are carved out by Hon'ble the Supreme Court which are;
(i) where remedy available under statute is not effective but only mere formality enumerated;(ii) where statutory authority not acted in accordance with provisions of enactment in question, or
(iii) where statutory authority acted in defiance of fundamental principles of judicial procedure, or
(iv) where statutory authority resorted to invoke provisions which are repeated, or
(v) where statutory authority passed an order in total violation of principles of natural justice.
Learned Government Pleader submitted that as the case of the petitioner would not fall under any of the aforesaid exception, the present petition cannot be straightway entertained and the petitioners are required to be relegated to avail alternative remedy available to the petitioners.
Page 32 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined 9.9.6 By relying upon judgment of this Court in the case of Mukesh Bhavarlal Bhandari & Anr. vs. UCO Bank & Anr rendered in Special Civil Application No.13529 of 2015 with Special Civil Application No.14480 of 2015 decided on 04.02.2016, learned Government Pleader submitted that in view of availability of alternative remedy which cannot be said to be non-efficacious or non-effective remedy, the petitioners are required to be relegated to avail statutory remedy and hence the present petition is required to be dismissed on account of preliminary objections as the remedy of appeal is provided in the statute itself and the appellate authority who is creature of statute would examine the matter by considering all the submissions which are canvassed before this Court as he is empowered to adjudicate the issue and the submissions that the petitioners have made application can be made before the statutory authority also in the statutory appeal and, therefore, at this stage this Court may not entertain matter on merits and prayed for dismissal of petition on the ground of alternative remedy itself.
9.10 Learned Government Pleader also pointed out that in all the judgments cited by learned senior advocate Mr.Joshi of this Court as well as of Hon'ble Supreme Page 33 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined Court as observed that in a given case the power under Article 226 of the Constitution of India can be exercised to bypass the statutory remedy and availability of alternative remedy is not a bar to entertain the writ petition but the same are required to be exercised only in a given case and not otherwise.
9.11 By making aforesaid submissions, learned Government Pleader prayed for dismissal of this petition.
10. I have heard the learned counsels for the respective parties and perused the records. Considering the fact that the counsels for the parties have argued the matter only on the aspect of alternative remedy and as the same has been observed while passing the order dated 08.02.2020 while reserving the matter for orders/judgments, I would deal with the aspect of alternative remedy only.
11. I have reproduced the prayer made in the petition in the foregoing paragraph and perusal of prayer would indicate that the petitioners have challenged the orders dated 28.10.2020 passed by the learned Mamlatdar and ALT, Gahtlodiya in Tenancy Case No. 312 of 2017 which was passed pursuant to the order passed by the Deputy Collector (Land Reforms and Appeals) Ahmedabad in an appeal under section 74 of the Tenancy Act being Tenancy Appeal No. 80 of 2006. The petitioners have by way of prayer made in the prayer (B) prayed for holding and declaring the action of Page 34 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined Deputy Collector in entertaining the appeal as ex-facie without jurisdiction.
12. That prayer is made after complying with the order dated 27.02.2017 passed by the Deputy Collector (Land Reforms) in Appeal No. 80 of 2006. Meaning thereby, by way of clever drafting, the petitioners have also challenged the order passed by the Deputy Collector (Land Reforms) dated 27.02.2017, after the said order was implemented and complied with by the petitioners by participating in the proceedings before the Mamlatdar and ALT who conducted the proceedings of Remand Case No. 312 of 2017. Pursuant to the order dated 27.02.2017 passed by the Deputy Collector (Land Reforms) and after hearing the parties, when the Deputy Collector after almost four years in the year 2020 passed an order dated 28.10.2020 as the petitioners were not in a position to challenge the order dated 27.02.2017 passed by the Deputy Collector (Land Reforms) by preferring a revision application before Gujarat Revenue Tribunal. After that order is implemented and remand proceedings were over, the petitioners challenged that order as well and therefore, after participating in the remand proceedings before the Mamlatdar pursuant to the order passed by the Deputy Collector in Tenancy Appeal No. 80 of 2006 as the petitioners have not only participated in the remand proceedings but after the remand proceedings were over and order dated 28.10.2020 was passed, the petitioners have indirectly challenged the order dated 27.02.2017 passed by the Deputy Collector (Land Page 35 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined Reforms) in Tenancy Appeal No. 80 of 2006 which is impermissible as order dated 27.02.2017 passed by the Deputy Collector has already been complied with and therefore, the petition has become infructuous as far as the challenge to the order dated 27.02.2017 in Tenancy Appeal No. 80 of 2006 and the prayers related to that orders are concerned and therefore, the Court is required to consider the prayers made by the petitioners in light of alternative remedy available to the petitioners only in respect to challenge to the order dated 28.10.2020 passed in Remand Tenancy Case No. 312 of 2017.
13. As far as the contention of learned Senior Advocate Mr. Joshi who were cited various judgments which are referred to in foregoing paragraphs and contended that availability of alternative remedy cannot be a barred to entertain writ petition is concerned, I have considered all the judgments cited by learned Senior Advocate Mr. Joshi as well as learned Government Pleader Ms. Shah and on perusal of those judgments, I found that what is required to be considered by the Court while considering the question of alternative remedy is whether the case of the petitioners falls within the exceptions carved down by those judgments or not based upon the facts of the case. In the instant case, the Court itself has found that there are allegations against the petitioners that all the petitioners who belong to one family have created SSK Ltd. which was sub divided in five other Mandalis and though the lands which were agriculture land and SSK Ltd. and its sub Page 36 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined division cannot be said to be an agriculturist as contended by the State in view of Government Resolution dated 23.11.1998 which has been confirmed upto the Hon'ble Supreme Court. Further, the allegations are to the effect that even at the time of converting the agriculture land for the purpose of converting into housing purpose, the petitioners have played fraud with the authorities as the conditions imposed upon the petitioners were not met with by the petitioners and therefore, the petitioners would not fall within the definition of person or agriculturist as defined under the Act and that they have purchased the land and thereafter, by way of various transactions though the lands were transferred various entities which were having control of some of the members of the family of the petitioners and ultimately the same land was purchased by the petitioners those entities i.e. SSK Ltd. and its sub division did not obtain the permission as prescribed under section 63 of the Act and therefore, all those transactions have taken place within the family members by creating and sub dividing SSK Ltd. and its parts by using fraudulent means, considering the seriousness of allegations and as the modus operandi has been explained extensively in the affidavit in reply, it would be in the interest of justice, if such allegations are properly examined by the statutory authority before whom the appeal lies i.e. Deputy Collector or Collector as those authorities are the authorities which can examine the record and verify the same in respect of submissions made by the petitioners visa vice allegations of fraud Page 37 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined against the petitioners.
14. When there are serious allegations of fraud against the petitioners, this Court mindful of the fact that the delay would not come in the way of State when the serious allegations of fraud against the petitioners are made for exercising the powers or that proceedings are without jurisdiction. When the petitioners themselves are facing serious allegations of fraud considering their modus operandi alleged by the respondent State, I am of the view that as the petitioners have participated in the proceedings before the Mamlatdar and ALT and thereafter, after considering the merits of the matter, the Mamlatdar and ALT has passed an order dated 28.10.2020 proper remedy which is required to be exhausted by the petitioners would be to file an appeal against the order passed by the Mamlatdar as provided under the Act.
15. Considering the fact that the aspect of fraud is involved in the matter, considering the seriousness of the allegations as well as object of the act, those allegations are required to be examined thoroughly and therefore, considering the fact that those allegations are based on factual aspects on that ground also the Deputy Collector or Collector would be the proper authority to examine those factual aspects rather than entertaining this petition on technical ground. If a person is claiming to be the owner of the lands on the basis of fraud, in that case, the petition preferred by the petitioners cannot be entertained on technical ground. The Page 38 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined allegations are of fraud must be examined and true facts are required to be unearth and that can be done only in case if the petitioners are relegated to avail the alternative remedy before the Deputy Collector. Therefore, also I do not see any reason to entertain this petition.
16. Further I have considered the very recent decisions of the Hon'ble Supreme Court dated 03.09.2021 in case of The Assistant Commissioner of State Tax and others versus M/s. Commercial Steel Limited in Civil Appeal No.5121 of 2021 and decision dated 12.01.2022 in case of Phoenix ARC Private Limited versus Vishwa Bharati Vidhya Mandir and others in Civil Appeal No.257-259 of 2022 wherein in both the above referred judgments also, the Hon'ble Supreme Court has considered the issue of availability of alternative remedy.
15.1 The Hon'ble Supreme Court while considering the issue of availability of alternative remedy in case of The Assistant Commissioner of State Tax and other versus Commercial Steel Limited (Supra), in paragraph No.11 and 12 observed as under :-
"11 The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be Page 39 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined entertained in exceptional circumstances where there is:
(i) a breach of fundamental rights;
(ii) a violation of the principles of natural justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the statute or delegated legislation.
12 In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent."
15.2 Similarly, the Hon'ble Supreme Court in case of Phoenix ARC Private Limited (Supra), in paragraph No.13 observed as under :-
"13. Now, so far as the submission on behalf of the borrowers that in exercise of the powers under Article 226 of the Constitution, this Court may not interfere with the interim / interlocutory orders is concerned, the decision of this Court in the case of Mathew K.C. (supra) is required to be referred to.Page 40 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023
NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined 13.1 In the case of Mathew K.C. (supra) after referring to and/or considering the decision of this Court in the case of Chhabil Dass Agarwal (supra), it was observed and held in paragraph 5 as under:-
"5. We have considered the submissions on behalf of the parties. Normally this Court in exercise of jurisdiction under Article 136 of the Constitution is loath to interfere with an interim order passed in a pending proceeding before the High Court, except in special circumstances, to prevent manifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well- defined exceptions as observed in CIT v. Chhabil Dass Agarwal [CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603], as follows: (SCC p. 611, para 15) "15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [Thansingh Nathmal v. Supt. of Taxes, AIR 1964 SC 1419] , Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433] and other similar judgments that the High Court will not entertain a petition under Page 41 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."
13.2 Applying the law laid down by this Court in the case of Mathew K.C. (supra) to the facts on hand, we are of the opinion that filing of the writ petitions by the borrowers before the High Court under Article 226 of the Constitution of India is an abuse of process of the Court. The writ petitions have been filed against the proposed action to be taken under Section 13(4). As observed hereinabove, even assuming that the communication dated 13.08.2015 was a notice under Section 13(4), in that case also, in view of the statutory, efficacious remedy available by way of appeal under Section 17 of the SARFAESI Act, the High Court ought not to have entertained the writ petitions. Even the impugned orders passed by the High Court directing to maintain the status quo with respect to the possession of the secured properties on payment of Rs.1 crore only (in all Rs.3 crores) is absolutely unjustifiable. The dues are to the extent of approximately Rs.117 crores. The ad-interim relief has been continued since 2015 and the secured creditor is deprived of proceeding further with the action under the SARFAESI Act. Filing of the writ petition by the borrowers before the High Court is nothing but an abuse of process of Court. It appears that the High Court has initially granted an ex-parte ad-interim order mechanically and without assigning any reasons. The High Court ought to have appreciated that by passing such an interim order, the Page 42 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined rights of the secured creditor to recover the amount due and payable have been seriously prejudiced. The secured creditor and/or its assignor have a right to recover the amount due and payable to it from the borrowers. The stay granted by the High Court would have serious adverse impact on the financial health of the secured creditor/assignor. Therefore, the High Court should have been extremely careful and circumspect in exercising its discretion while granting stay in such matters. In these circumstances, the proceedings before the High Court deserve to be dismissed."
17. Considering the fact that in view of the facts stated in the petition, the case of the petitioners would not fall under any of the exceptions stating herein above, the present petition is not maintainable as the petitioners have alternative efficacious remedy available with them of challenging the order dated 28.10.2020 passed by the Mamlatdar and ALT, Ghatlodiya in Tenancy Case No. City Ghatlodiya/Krushipanch/Section 63 (AD)/ Remand Ganot Case No. 312 of 2017 , by preferring statutory appeal as per the scheme of the Act and therefore, without entering into merits of the matter, the present petition is required to be dismissed and the same is dismissed accordingly.
18. In view of above reason, I do not seen any reason to entertain this petition on merits. The petitioners are required to be relegated to avail the alternative remedy, if they so deem appropriate. In case if the petitioners availed the alternative Page 43 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023 NEUTRAL CITATION C/SCA/15413/2020 CAV JUDGMENT DATED: 19/06/2023 undefined remedy, the respondents authorities before whom the petitioners may prefer appropriate proceedings, it is expected to hear and decide the same as early as possible.
19. With the aforesaid observations and directions, the present petition stands dismissed. Rule is discharged, no order as to costs. Interim relief granted earlier shall stands vacated forthwith.
20. In view of dismissal of main matter, connected Civil Application also stands disposed of.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 44 of 44 Downloaded on : Sat Sep 16 20:23:55 IST 2023