Gujarat High Court
Abdul vs Mehboob on 30 June, 2009
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/5564/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 5564 of 2008
With
CIVIL
APPLICATION No. 14076 of 2008
In
FIRST APPEAL No. 5564 of 2008
=========================================================
ABDUL
KARIM UMARBHAI TAI - Appellant(s)
Versus
MEHBOOB
UMARBHAI TAI - Defendant(s)
=========================================================
Appearance
:
MR
DAKSHESH MEHTA for
Appellant(s) : 1,
MR JB PARDIWALA for Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 30/06/2009
ORAL
ORDER
Heard learned advocate Mr. Mehta on behalf of appellant, learned advocate Mr. JB Pardiwala appearing for original plaintiff.
In present appeal, appellant has challenged order passed by Additional Senior Civil Judge, Navsari in Spl. Civil Suit no. 62/2002 dated 29/2/2008 on the ground that decree dated 29/11/2006 was preliminary decree and thereafter, for compliance of said decree, Collector, Navsari issued procedure for distribution through D.I.L.R. and sent a map under Exh. 123 along with a Panchnama. As panchnama has been drawn in absence of appellant advocate appearing for appellant had objected same, even though, without appreciating same Add. Senior Civil Judge, Navsari has passed an order on 29/2/2008.
Considering aforesaid challenged made by appellant before this Court, learned advocate Mr. Pardiwala submitted that if appellant is having any grievance against panchnama drawn by Collector, then appellant is having alternative remedy to approach higher authority then Collector under Bombay Land Revenue Code but appeal is not maintainable against aforesaid grievance relying upon decision of this Court in case of Ravatsinh Ranubha Vs. V. S. Sinha or his successor & Ors reported in 2001 (1) GLH 764, relevant observation made in para 15 is quoted as under:
?S15. The Collector is vested with the power to partition the agricultural land because he is vested with required powers under the revenue laws and different land laws. He is therefore acting as the Revenue Officer and the officer under the land laws. He would therefore be the best person to divide the agricultural lands and deal with all ancillary issues and dispose the same of fully and finally. When he has to divide the land in accordance with the revenue laws and other land laws applicable, and has also to keep in mind the Government revenue, he is the office who in best way can be termed the Revenue Officer. This is what is made clear by the High Court of Bombay in the case of Paygonda Survgonda Patil & Ors Vs. Jingonda Surgonda Patil & Ors. - AIR 1968 Bombay 198 laying down that the decision of the Collector effecting the partition of the revenue paying land in execution of a decree passed by the Civil Court is subject to an appeal to the Commissioner under Section 203 of the Code, and is also revisable under Section 211 thereof. In that decision, it is made clear that the Collector is a Revenue Officer because he is appointed under the provisions of the Code, and also because the purpose of his employment and the normal work for which he is employed is to look after the revenue administration of a district. The decisions and orders passed by him are therefore appealable under Section 203 even if they are not passed in the course of revenue administration. The higher authorities of the Collector have a right to examine the correctness of the decision or the order of the Collector. Section 54, Civil Procedure Code contains no provision and certainly no express provision which runs counter to the appellate powers conferred under Section 203 of the Code. In this decision, incidentally it may also be stated that with regard to the writ jurisdiction it is made clear that High Court will not interfere with the order of the lower court however wrong it may be in law but if it is necessary to interfere in the interest of justice, the Court would certainly interfere and pass appropriate order. The Collector is not subject to revisional jurisdiction of the Court, is also made clear by the High Court of Bombay in Shrinivas Hanmant's case (supra). Whenever therefore the party has grievance against the order of the Collector effecting partition and putting the parties in possession of the portion of the land falling to their shares, there being no specific provision in the Civil Procedure Code qua Section 54, C. P. Code, the Appeal or the Revision permissible under the Code has to be filed before the higher authority of the Collector in hierarchical set up under the Revenue laws or the Code, and not under the Civil Procedure Code. The decision in Ningappa Balappa's case (supra), the High Court of Bombay does not lay down that the Revision before the Collector's higher authority is not competent and the same has to be filed in Civil Court of the District Court. As stated in para 12 hereinabove, the said decision lays down that the Court has limited control which is to be exercised only if the Collector contravenes the decretal order. On such decision, it cannot be inferred or assumed as has been done by the ld. Advocate in making submission that the Revision will lie before the Court. The contention based on this decision that Revision cannot lie before Addl. Chief Secretary must fail.??
In view of aforesaid decision of this Court, this appeal is not maintainable. Let appellant may approach to higher officer then Collector under provisions of Bombay Land Revenue Code against panchnama drawn by Collector.
Subject to aforesaid liberty, this appeal is disposed of without considering merits of matter. Today, first appeal is disposed of, therefore, no order is required to be passed on civil application. Accordingly, civil application is disposed of.
(H.K.RATHOD, J) asma Top