Gujarat High Court
Dalsukhbhai Chaturbhai Prajapati vs State Of Gujarat & 7 on 21 December, 2016
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/18592/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18592 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== DALSUKHBHAI CHATURBHAI PRAJAPATI....Petitioner(s) Versus STATE OF GUJARAT & 7....Respondent(s) ========================================================== Appearance:
MR RS SANJANWALA, SENIOR ADVOCATE WITH MR PARTHIV B SHAH, ADVOCATE for the Petitioner MR KM ANTANI, ASSISTANT GOVERNMENT PLEADER for the Respondents Nos. 1 to 6 MR JV MR RJ GOSWAMI, ADVOCATE for the Respondent(s) No. 7 NOTICE SERVED for Respondent No. 8 ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 21/12/2016 Page 1 of 33 HC-NIC Page 1 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT C.A.V. JUDGMENT
1. Rule. Mr.K.M.Antani, learned Assistant Government Pleader, waives service of notice of Rule on behalf of respondents Nos.1 to 6, the State of Gujarat and its authorities.
Mr.J.V.Vaghela, learned advocate, waives service of notice of Rule for respondent No.7, on behalf of Mr. R. J. Goswami, learned advocate. Respondent No.8, though served, has chosen not to appear, hence, there is no requirement of issuing notice of Rule to the said respondent who, in any case, is not a contesting party. Learned counsel for the respective parties have urged the Court to decide the matter finally, therefore, looking to the facts and circumstances of the case and with their consent, the petition is being heard and decided.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has Page 2 of 33 HC-NIC Page 2 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT challenged the noticecumorder dated 28.09.2015, issued by the Deputy Collector, Vadodara, the third respondent herein, under Rule 108(5) of the Gujarat Land Revenue Rules, 1972 ("the Rules"), in RTS/ Appeal/ 108(5)/ Case No.20/2015, whereby, while fixing the date of hearing of the said appeal on 29.10.2015, directions have been issued to respondents Nos.4, 5, and 6, the TalaticumMantri, Harni, the TalaticumMantri, Ankodiya, and the Talati cumMantri, Karodiya, respectively, to initiate inquiries in respect of certain mutation entries in favour of the petitioner, on the basis of an application made by respondent No.7, who, according to the petitioner, is a total stranger and has no interest in the lands regarding which the above entries have been mutated in the revenue record.
3. Briefly stated, the facts of the case are as under:
The petitioner, along with respondent No.8, purchased land bearing Revenue Survey No.1280/1 Page 3 of 33 HC-NIC Page 3 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT (corrected Survey No.1280/K) situated at Village Harni, from its original owner, by way of four separate registered Sale Deeds. The details of the land purchased are as below:
Sr Date of Sale Registration Measurement No Deed No. 1 03.04.1984 2351 9A 13G 2 03.04.1984 2354 9A 13G 3 26.04.1984 3078 9A 13G 4 26.04.1984 3079 9A 13G
4. Mutation entries Nos.1889, 1890, 1891 and 1888 came to be mutated in the revenue record on 30.04.1984, in respect of the above sale transactions. The said entries also came to be certified. After a period of thirtyone years, respondent No.3 issued the impugned noticecum order dated 28.09.2015, on the basis of an application made by respondent No.7 regarding the above mutation entries in respect of the sale transactions of the petitioner. Aggrieved by the issuance of the impugned notice, the petitioner is before this Court.
5. The third respondent initiated proceedings at Page 4 of 33 HC-NIC Page 4 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT the behest of respondent No.7 herein, Shardaben Bhikhabhai Mali, who describes herself as a "Lok Jagrut Nari" in the vernacular, which can loosely be translated as a "socially aware lady". Respondent No.7 made an application dated 11.08.2015, for condonation of the delay in filing the appeal, wherein she questioned the status of the petitioner as an agriculturist and, consequently, his entitlement to purchase the land in question. Describing herself as a publicspirited person, respondent No.7 alleged that the mutation entries in respect of the land purchased by the petitioner, have not been mutated after proper inquiry regarding his status as an agriculturist and, therefore, the said entries should be cancelled.
6. At this stage, it would be relevant to take note of certain other background facts that have a direct bearing on the issues involved in the petition. Before the initiation of the present proceedings, another purported social activist named Arvindbhai Ambalal Patel, had filed a petition in this Court, being Special Civil Page 5 of 33 HC-NIC Page 5 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT Application No.12223 of 2015, praying that appropriate directions be issued to the respondent authorities, as the present petitioner (who was arrayed as respondent No.5 in that petition) could not be said to be an agriculturist in the eyes of law. The petition was rejected by this Court vide judgment dated 31.07.2015 (Coram: K.J.Thaker, J.), holding that respondents Nos.5 to 7 (the present petitioner was respondent No.5) are agriculturists and that the petitioner of that petition was nothing but a busybody. The above judgment of this Court was challenged directly by the petitioner Arvindbhai Ambalal Patel, before the Supreme Court, by preferring petition for Special Leave to Appeal (C) No.23009 of 2015. By an order dated 21.08.2015, the Special Leave Petition came to be dismissed. The very same issue regarding the status of the petitioner as an agriculturist has been called into question by respondent No.7 in the present proceedings, at whose instance the third respondent has issued the impugned notice cumorder.
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7. Mr.R.S.Sanjanwala, learned Senior Advocate with Mr.Parthiv B. Shah, learned advocate, has appeared for the petitioner and made detailed submissions, which are summarised as below:
1) That respondent No.7 has no locus standi to challenge the entries mutated in the revenue record as she is not even remotely interested in the land in question. She has no right, title or interest in the land and is a busybody, at whose instance the proceedings are not maintainable. The appeal, at the behest of respondent No.7, ought not to have been entertained by the Deputy Collector, by issuing the impugned noticecumorder.
2) That the Deputy Collector has not passed any order condoning the inordinate delay in filing the appeal but has straightaway issued the impugned noticecumorder, directing that a departmental inquiry be conducted to look into the mutation entries in favour of the petitioner. The said RTS entries have operated for 31, 26 and 42 years, respectively, and are Page 7 of 33 HC-NIC Page 7 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT now sought to be removed at the behest of a person who has no locus standi to challenge them. The Deputy Collector has erred in entertaining the appeal of respondent No.7 after the lapse of such a long period of time, in total contravention of the principles of law laid down by the Supreme Court and this Court in a plethora of judgments.
3) That no proceedings have been initiated under Section 84C of the Gujarat Tenancy and Agricultural Lands Act, 1948 ("the Tenancy Act"), at any point of time, calling in question the sale transaction made by the petitioner. The Deputy Collector has now thought it fit to initiate the present proceedings after over thirty years, which action, in itself, is bad in law.
4) That, in the earlier round of litigation the High Court has concluded the issue regarding the status of the petitioner as an agriculturist. It has been held by this Court, after scrutinising the material on record, that Page 8 of 33 HC-NIC Page 8 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT the petitioner is an agriculturist. The challenge to the order of this Court has been negatived by the Supreme Court. The very same issue is now being raked up by the Deputy Collector at the instance of respondent No.7, which is impermissible in law. The order of this Court has attained finality and the Deputy Collector cannot try to reopen an issue already concluded by this Court and upheld by the Supreme Court.
5) That, the revenue authorities have no business adjudicating the validity of a transaction of sale on the ground of the alleged breach of another enactment, as per the settled position of law. On this count as well, the impugned noticecumorder deserves to be quashed and set aside.
8. On the issue of delay in the initiation of proceedings, learned Senior Counsel has relied a judgment of this Court in Ravichand Manekchand Sheth & Ors. v. State of Gujarat & Ors. 2006(2) GLR 1567. Another case relied upon is Page 9 of 33 HC-NIC Page 9 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT judgment dated 07.05.2013 in the case of Zuber Abdulgaffar Memon v. State of Gujarat And Anr. Special Civil Application No.1111 of 2012. Reliance has also been placed upon a judgment of the Division Bench in Bharatbhai Naranbhai Vegda & Ors. v. State of Gujarat & Ors. 2016(2) GLR 1021.
9. On the point that the revenue authorities cannot question the validity of the mutation entries for an alleged breach of another enactment, reliance has been placed upon a judgment of this Court in the case of Rinki Shashikant Gandhi v. Mamlatdar Vadodara Taluka & Ors. 2012(2) GLR 1275.
10. On the basis of the above submissions, Mr.R.S.Sanjanwala, learned Senior Counsel has urged the Court to grant the prayers made in the petition.
11. The petition has been opposed by Mr.K.M.Antani, learned Assistant Government Pleader, by submitting that it is directed against a show Page 10 of 33 HC-NIC Page 10 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT cause notice and is premature in nature. The submissions advanced on behalf of the petitioner before this Court can very well be advanced before the competent authority. It is further submitted that as the petitioner has an alternative remedy to approach the Collector against the order of the Deputy Collector, therefore, this Court may not entertain the petition.
12. Mr.J.V.Vaghela, learned advocate for respondent No.7, has adopted the submissions advanced by the learned Assistant Government Pleader.
13. This Court has accorded thoughtful consideration to the submissions advanced by the parties and has perused the entire material on record.
14. First of all, it would be necessary to deal with the objections raised by the learned Assistant Government Pleader and learned counsel for respondent No.5, regarding the challenge to a show cause notice which, according to them, is not maintainable in the present proceedings on the ground that the petitioner has an Page 11 of 33 HC-NIC Page 11 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT alternative remedy.
15. The objections raised by the learned Assistant Government Pleader and learned counsel for respondent No.7 are answered in the judgment of the Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai And Others - (1998)8 SCC 1. In that case as well, the challenge was to a show cause notice issued by the Deputy Registrar under Section 56(4) of the Trade and Merchandise Marks Act, 1958. The Supreme Court, after examining several judicial precedents regarding the jurisdiction of the High Court in entertaining a petition under Article 226 of the Constitution of India in spite of the existence of an alternative statutory remedy, laid down the following principles of law:
"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by an other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo Page 12 of 33 HC-NIC Page 12 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of caselaw on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.
Page 13 of 33 HC-NIC Page 13 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT ... ... ...
20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."
16. In the judgment dated 07.05.2013, rendered in the case of Zuber Abdulgaffar Memon v. State of Gujarat And Anr. (supra), this Court was dealing with a challenge to a show cause notice which was set aside on the ground of delay in the initiation of proceedings.
17. The Division Bench was also dealing with a case regarding a show cause notice in Bharatbhai Naranbhai Vegda & Ors. v. State of Gujarat & Ors. (supra). It found that the initiation of action by the authorities, beyond a reasonable Page 14 of 33 HC-NIC Page 14 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT period of time, was without jurisdiction.
18. The above judgments are illustrative of the point that if the action of issuing the show cause notice is found to be beyond the jurisdiction of the authority concerned, the Court can exercise its powers under Article 226 of the Constitution, without relegating the petitioner to avail of the alternative remedy. Limitation is a jurisdictional issue. After all, an action without jurisdiction is no action in the eyes of law and there can be no restriction in the exercise of writ jurisdiction to set it aside when challenged as being contrary to settled legal principles. The bar of alternative remedy would not, therefore, arise in the present case.
19. We may now examine whether the impugned notice cumorder issued by the third respondent is a result of a correct exercise of jurisdiction or not and whether the said respondent is legally justified in initiating the proceedings, in the manner that has been done.
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20. The main issue involved in the petition, which has triggered off the impugned action by the Deputy Collector, is the status of the petitioner as an agriculturist. As noted earlier, this issue has already been concluded by the High Court, by the order dated 31.07.2015, passed in Special Civil Application No.12223 of 2015, the SLP against which has also been rejected by the Supreme Court. Those proceedings were initiated at the behest of another busybody. Strangely, the present proceedings have also arisen at the instance of respondent No.7, who is a selfproclaimed socially active lady who, admittedly, has no right, title or interest in the land in respect of which the mutation entries are sought to be challenged.
21. In the application for condonation of delay filed by respondent No.7 before the third respondent, the said respondent has demanded an inquiry into the mutation entries posted in favour of the petitioner, on the ground that the petitioner is not an agriculturist. She has Page 16 of 33 HC-NIC Page 16 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT further alleged that the entries have been posted with the connivance of the revenue authorities. Respondent No.7, herself, states that there is a delay of 31 years, 4 months and 11 days in filing the appeal, which may be condoned. Apart from reiterating that she is a socially active lady, respondent No.7 has not given even a single, plausible reason, why such a massive delay ought to be condoned.
22. Besides, there is nothing on record to show that respondent No.7 has any interest, whatsoever, in the land in question. During the course of hearing, this Court addressed a query in this regard to learned counsel for respondent No.7, who admitted that the said respondent had no interest in the land, but was a publicspirited person.
23. In the view of this Court, respondent No.7 is no more than a busybody who, at her own behest or motivated by unknown persons for unknown reasons, has sought to file the appeal after a massive delay which could not be condoned for Page 17 of 33 HC-NIC Page 17 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT lack of sufficient cause. It does appear that the petitioner is rather prone to attracting busybodies, as respondent No.7 is the second one who has tried to question his status as an agriculturist. This pattern of events is suggestive of the possibility that the action of busybodies such as respondent No.7 may not be so publicspirited as is made out to be, but may have emanated from a motivated desire to harass the petitioner.
24. Be that as it may, the fact remains that respondent No.7 has no locus standi, whatsoever, to file the appeal before the third respondent. As respondent No.7 has no right, title or interest in the land for which the entries are mutated, she cannot be said to be a "person aggrieved". That being the position, the third respondent ought not to have initiated action on the appeal filed by respondent No.7.
25. Not only has the third respondent directed a departmental inquiry against the mutation entries in question, he has done so without Page 18 of 33 HC-NIC Page 18 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT condoning the selfconfessed delay of 31 years, 4 months and 11 days, for which no cause, leave alone sufficient cause, has been shown by respondent No.7. This action of respondent No.3 is in conflict with the settled principles of law laid down in a catena of judgments.
26. In the case of State of Gujarat v. Patel Raghav Natha and others 1969(10) GLR 992, the Supreme Court has held as below:
"12. The question arises whether the Commissioner can revise an order made under sec.65 at any time. It is true that there is no period of limitation prescribed under sec.211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised."
(emphasis supplied)
27. In the case of Bhanji Devshibhai Luhar v. State of Gujarat - 2011(2) GLR 1676, action was taken after a delay of seventeen years. The Division Bench of this Court held as below:
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HC-NIC Page 19 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT The said delay of 17 years has remained unexplained and unjustified. It is only defended on the ground that the transaction is statutorily void. However, while defending the action the aforesaid relevant aspects and the absence of explanation regarding delay are not being taken into account. (Para 22) (emphasis supplied)
28. In the judgment of this Court dated 07.05.2013, passed in the case of Zuber Abdulgaffar Memon v. State of Gujarat And Anr. (supra), relying upon the judgment in the case of Bhanji Devshibhai Luhar v. State of Gujarat (supra), it is held that:
"15) As regards the contention that as the petitioner had become an agriculturist by virtue of a will, the initial transaction itself was void and therefore, the present transaction based on a mutation entry made pursuant to such will is bad in law and as such the Mamlatdar is justified in initiating proceedings under section 84C of the Tenancy Act, as noted hereinabove, it is settled legal position that even a null and void transaction is required to be challenged within a reasonable time. A Page 20 of 33 HC-NIC Page 20 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT Division Bench of this court in the case of Bhanji Devshi Luhar (supra) where action was sought to be taken after a period of seventeen years on the ground that in respect of a void transaction action can be taken at any time, has held that even if the transaction was void, since action was taken after a delay of seventeen years, the authority would be precluded from initiating action to annul such void transaction which had been allowed to remain effective for a considerably long period. In the facts of the present case the transaction in question has been allowed to remain effective for a period of nine years from the date of the mutation entry and eleven years from the date of the transaction, which is a considerably long period, under the circumstances the authority is precluded from initiating action in respect of such transaction. The impugned showcause notice, therefore, cannot be sustained."
29. The Division Bench of this Court in Bharatbhai Naranbhai Vegda & Ors. v. State of Gujarat & Ors. (supra), has held that:
The bar of delay operates against the exercise of the jurisdiction or that the initiation of the action is beyond Page 21 of 33 HC-NIC Page 21 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT reasonable period as per the wellsettled principles of law, the action can be said as without jurisdiction. If an action is without jurisdiction, as observed by the Apex Court in the abovereferred decision in the case of State of Punjab v. Bhatinda District Coop. Milk Producers Union Ltd., 2007(11 SCC 363, the petition under Art. 226 of the Constitution can be maintained and the jurisdiction of this Court under Art. 226 of the Constitution can be invoked.
(Para 12) (emphasis supplied)
30. In view of the above principles of law, it is obvious that the issuance of the impugned noticecumorder in the present case after a delay of over thirtyone years, which is a grossly unreasonable period of time, is without jurisdiction. Mutation Entries Nos.1889, 1890 and 1891 were mutated on 30.04.1984. The impugned notice is dated 28.09.2015. An action which is without jurisdiction cannot operate as a bar to the exercise of power under Article 226 of the Constitution, in spite of the availability of an alternative, statutory Page 22 of 33 HC-NIC Page 22 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT remedy.
31. By filing the appeal, respondent No.7 has sought to reopen and reagitate the concluded issue regarding the status of the petitioner as an agriculturist. The petitioner has produced documentary evidence on the record of the petition, in support of his being an agriculturist. This evidence has not been controverted by anybody. Looking to the said documentary evidence, it is clear that the father of the petitioner, Chaturbhai Khodabhai Prajapati, had entered into an agreement with Lalabhai Lallubhai, as far back as on 04.06.1948 and since then, the family of the petitioner are cultivating the land and doing pottery work thereupon. The petitioner, along with his brothers Ramanbhai Chaturbhai Prajapati and Rameshbhai Chaturbhai Prajapati, were also helping their father in agricultural activities on the land as well as doing pottery work. Being the sons of an agriculturist who were actually performing agricultural activities, they are also agriculturists.
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32. By a registered Sale Deed dated 23.04.1965, the petitioner and his brothers Ramanbhai Chaturbhai Prajapati and Rameshbhai Chaturbhai Prajapati, purchased land bearing Revenue Survey No.4/1/B, belonging to Lalabhai Lallubhai, which is agricultural land. Thereafter, in the year 1997, the Collector, Vadodara, granted permission to the present petitioner to purchase new tenure land.
33. The Special Secretary (Appeals), Revenue Department, in his order dated 29.03.1995, passed in RTS/ Suo Motu/ Vadad/ 12/1994, has clearly held that the petitioner and his brother Ramanbhai Chaturbhai Prajapati were performing agricultural activities since 197576 and their names are reflected in the revenue record. Hence, not only the petitioner but his family members as well, are agriculturists.
34. In addition to the above, the petitioner holds other agricultural land. Mutation Entry No.556 was posted in the revenue record on 21.09.1974, wherein it is clearly stated that Revenue Survey Page 24 of 33 HC-NIC Page 24 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT No.217/1 Paiki of Village Karodia is jointly owned by the petitioner and three others. This is also agricultural land.
35. As referred to earlier, one Arvindbhai Ambalal Patel, filed Special Civil Application No.12223 of 2015 before this Court, against the competent authority and the present petitioner, who was impleaded as respondent No.5, and his family members, inter alia, making a specific prayer to decide the issue as to whether the petitioner and his family members are agriculturists or not. This Court, after examining the material on record dismissed the petition vide order dated 31.07.2015, and held that mutation entries which were settled in the year 1974, cannot be unsettled by a busybody. It was further held that the issue as to whether the present petitioner (respondent No.5 therein) is an agriculturist or not has attained finality, as the Special Secretary, Revenue Department, withdrew the notice dated 22.09.1993 and the same issue is now sought to be reopened. The Court observed that the competent authority has Page 25 of 33 HC-NIC Page 25 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT held that the petitioner is cultivating the land. Thus, on the basis of the above material, this Court held that the petitioner is an agriculturist. The Supreme Court has dismissed the SLP against the above order of this Court, which has attained finality.
36. In light of the above, the case of respondent No.7 before the Deputy Collector, that the petitioner has become an agriculturist by will, is nothing but an attempt to overreach the abovementioned judgments of this Court and the Supreme Court and to reopen a concluded issue. It has been found that there is sufficient evidence on record to show that the father of the petitioner was an agriculturist and the petitioner and his family members are also agriculturists. In view of the earlier pronouncement of this Court, the judgment of the SSRD and the material on record, there can be no other conclusion, as already arrived at, save and except that the petitioner and his family members are agriculturists.
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37. It is not as though the third respondent is unaware of the judgment of this Court and the rejection of the SLP against it by the Supreme Court. He therefore, ought not to have issued the impugned noticecumorder to initiate a departmental inquiry into the mutation entries Nos.1889, 1890 and 1891 (dated 30.04.1984) of village Harni, mutation entries Nos.2165 (dated 28.08.1992) of village Ankodiya and Mutation Entry No.556 (dated 21.09.1974) of village Karodiya, by directing the TalaticumMantries of the said villages to file their reports. In light of the earlier judgment of this Court that has attained finality, the action of the third respondent in issuing the impugned notice is without jurisdiction as, by doing so, the said respondent is acting contrary to an already concluded issue.
38. The impugned noticecumorder cannot be sustained on another ground. It is a settled position of law that the revenue authority, while deciding an RTS Appeal under Rule 108(6) of the Rules, is not empowered to issue Page 27 of 33 HC-NIC Page 27 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT directions, or adjudicate issues, arising out of another enactment. An inquiry of the nature initiated by the Deputy Collector cannot be made in RTS proceedings, as the authority is not exercising power under the Tenancy Act. The directions issued in the impugned notice are, therefore, without jurisdiction. This view is supported by the principles of law enunciated by this Court in Evergreen Apartment Coop. Housing Society v. Special Secretary, Revenue Department, Gujarat State - 1991(1) GLR 113 and Rinki Shashikant Gandhi v. Mamlatdar Vadodara Taluka & Ors. (supra).
39. In Evergreen Apartment Coop. Housing Society v. Special Secretary, Revenue Department, Gujarat State (supra), it has been held as below:
"12. .....So the entire inquiry and revisional power has to proceed under the Bombay Land Revenue Rules and not under any enactments like the Bombay Tenancy and Agricultural Lands Act, Urban Land (Ceiling and Regulation) Act or Bombay Prevention of Page 28 of 33 HC-NIC Page 28 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT Fragmentation and Consolidation of Holdings Act. It is quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by competent authorities under special enactments. Independently the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of canceling the entries on an assumption that the transaction recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed......."
40. In Rinki Shashikant Gandhi v. Mamlatdar Page 29 of 33 HC-NIC Page 29 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT Vadodara Taluka & Ors. (supra), this Court has held:
"25(4) The Collector, in exercise of power under Rule 108(6) in RTS proceedings cannot exercise power under the Fragmentation Act, merely by virtue of his position or designation or the fact that he may be acting in different capacities under different enactments. Being a quasi judicial authority, the Collector is bound to exercise power within the limits prescribed by the particular enactment under which he is called upon to adjudicate, and cannot transgress the limits of such statutory power, in a manner that overlaps a different enactment. By passing the impugned order, the Collector has transgressed the scope and ambit of the power conferred by subrule (6) of Rule 108 of the Gujarat Land Revenue Rules, 1972, and has erroneously exercised power under the Fragmentation Act, which is not permissible."
(emphasis supplied)
41. At this stage, the Court is constrained to observe that the impugned show cause notice, which is referred to as the noticecumorder by Page 30 of 33 HC-NIC Page 30 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT the petitioner, is a gross example of the misuse of power and authority by the third respondent. It is actually an order, obliquely worded, in the garb of a show cause notice. The recitals in the notice, at first glance, give the impression that it is unexceptional, inasmuch as it fixes a date of hearing of the appeal filed by respondent No.7. However, a closer look reveals that the mischief lies in the cause title where the memorandum of parties is shown. The appellant is shown to be the present respondent No.7. The first three respondents are the TalaticumMantries of Villages Harni, Ankodia and Karodiya. The fourth respondent is respondent No.8 herein. The petitioner is shown as the fifth respondent. What is shocking is that the three TalaticumMantries mentioned above have been directed, in the causetitle itself, to initiate inquiries into the mutation entries mentioned against their names. The causetitle is thus a disguised order to the three TalaticumMantries, to initiate departmental inquiries. Such directions could Page 31 of 33 HC-NIC Page 31 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT not have been given in a show cause notice. The third respondent appears to have devised a novel (but illegal) method to do indirectly, what he cannot do directly, legally or validly. Blatantly illegal directions are being given in the garb of a show cause notice for the hearing of the appeal, disguised in the causetitle of the notice. The ordercumnotice, therefore, is a perfect example of the misdirection of authority and the exercise of jurisdiction not vested in respondent No.3, in a manner that is unheard of. This being the position, the impugned noticecumorder does not deserve to stand even for a minute.
42. As a consequence of the above discussion and for the aforestated reasons, the impugned notice cumorder dated 28.09.2015, issued by the third respondent in RTS/ Appeal/108(5)/Case No.20/2015, is hereby quashed and set aside.
43. The petition is allowed. Rule is made absolute. Parties to bear their own costs.
Page 32 of 33 HC-NIC Page 32 of 33 Created On Thu Dec 22 00:05:14 IST 2016 C/SCA/18592/2015 CAV JUDGMENT (SMT. ABHILASHA KUMARI, J.) sunil Page 33 of 33 HC-NIC Page 33 of 33 Created On Thu Dec 22 00:05:14 IST 2016