Gujarat High Court
Jagdishbhai Tulsidas Katiya vs The Alt And Mamlatdar on 10 March, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14495 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JAGDISHBHAI TULSIDAS KATIYA
Versus
THE ALT AND MAMLATDAR
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Appearance:
MR YM THAKKAR(902) for the Petitioner(s) No. 1,2
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3
SERVED BY RPAD (N) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 10/03/2022
ORAL JUDGMENT
1 By way of this petition, the petitioners have challenged the order dated 14.7.2020 passed by the Deputy Collector, Panchmahal at Godhra in Page 1 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022 C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022 Ganot/76(A)/Avlokan/Case No.06 of 2020 whereby the order dated 3.1.2018 passed by the Mamlatdar & ALT, Panchmahal at Godhra in JMN/84(C) Case No.37 of 2017 was confirmed.
2 By the consent of learned advocates for the parties, the matter is taken up for final hearing. Hence, issue Rule. Mr. Krutik Parikh, learned AGP waives service of notice of rule on behalf of the State respondents.
3 Short facts of the case are that the petitioners are husband and wife, who owns a firm named Radhakrishna Brick Industries. The petitioners after getting necessary permissions, including the permission under Section 63AA under the Gujarat Tenancy and Agricultural land Act, 1948 (for short, `Tenancy Act') and permission under Section 65 of the Bombay Land Revenue Code, purchased an agricultural land and constructed building over the said land and installed necessary machinery and on completion of the construction started manufacturing bricks and other ancillary products.
Page 2 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022 C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022 3.1 Though necessary permissions were obtained by the petitioners, they were served with a show cause notice dated 1.7.2014 issued by the Mamlatdar & ALT for alleged breach of Sections 63 and 64 of the Tenancy Act. A second show cause notice was served upon the petitioners on 31.7.2014. After issuing, in all, 8 show cause notices, the Mamlatdar and ALT passed order dated 3.1.2018 vesting the land belonging to the petitioners into the State Government.
3.2 The petitioners being aggrieved by the order dated 3.1.2018 preferred an appeal before the District Collector under Section 74 of the Tenancy Act. Simultaneously, the Deputy Collector, Panchmahal also initiated suo motu revisional proceedings by exercising powers under Section 76A of the Tenancy Act and though the appeal preferred by the petitioner, whereby the very order dated 3.1.2018 was challenged, was pending, passed a non-speaking ex parte order dated 14.7.2020 by confirming the order dated 3.1.2018.
Page 3 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022
C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022 3.3 The grievance of the petitioners in the present petition is that when the language of Section 76A categorically provides that in case if no appeal filed under Section 74,then only the Deputy Collector can exercise revisional powers and proceedings under Sections 74 and 76A both cannot go parallel before the Deputy Collector.
4 Mr. Y.M.Thakkar, learned advocate for the petitioner, draws attention of this Court to Sections 74 and 76A of the Tenancy Act. Sections 74 and 76A of the Tenancy Act read as under:
"74:Appeals (1) An appeal against the order of the Mamlatdar and the Tribunals may be filed to the Collector in the following cases: -
(a) an order under section 4,
(d) an order under section 9, [(dd) an order under section 9A],
(e) an order under section 10,
(g) an order under section 13, Page 4 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022 C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022
(h) an order under section 17,
(i) an order under section 19,
(j) an order under section 20,
(k) an order under section 23,
(l) an order under section 25,
(m) an order under section 29, [(ma) an order under 8[sub-section (1B) and (2)] of section 32,] [(mb) a decision under section 31 or 32F, or an order under section 32G] [(n) an order under section 32K, 32M] (na) a decision under the proviso to sub-section (4) of section 32T or an order under section 32U,]
(o) an order under section 33, [(oo) an order under sub-section (5) of section 34,]
(p) an order under section 37,
(q) an order under section 39,
(r) an order under section 41, [(rr) an order made pursuant to a notification issued under sub-section (3) of section 43A,] [(ra) an order under section 43B,] Page 5 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022 C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022
(s) an order under section 64, [(t) an order under Chapter V-A, [(ta) an order passed under 18[clause (b) or clause (nb)] of section 70,] (u) an order made under section 84A, 84B or 84C, 19[(ua) an order under section 84CC,]
(v) an order under section 85A, (w) an order under section 88C.] (2) Save as otherwise provided in this Act, the provisions of Chapter XIII of the Bombay Land Revenue Code, 1879 (Bom. V of 1879), shall apply to appeals to the Collector under this Act, as if the Collector were the immediate superior of the Mamlatdar or the Tribunal. The Collector in appeal shall have power to award costs."
"76A - Where no appeal has been filed within the period provided for it. the Collector may, suomotu or on a reference made in this behalf by the State Government, at any time,- (a) call for the record of any inquiry or the proceeding of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and (b) pass such order thereon as he deems fit:Page 6 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022
C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022 Provided that 1 [no such record shall be called for after the expiry of one year from the date of such order and] no order of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard.]"
4.1 Learned advocate Mr. Thakkar, submits that at the time when the powers under Section 76A of the were exercised by the Collector, the appeal preferred by the petitioners became redundant since order dated 14.7.2020 passed by the Deputy Collector in exercise of powers under Section 76A is passed without hearing the petitioners and that order is required to be quashed and set aside and appeal preferred by the petitioner under Section 74 of the Tenancy Act is required to be heard on merit. In view of the aforesaid submissions, learned advocate Mr. Thakkar prayed for quashing and setting aside the order dated 14.7.2020 passed by the Deputy Collector, Panchmahal. 5 Mr. Krutik Parikh, learned AGP, upon instructions as well as by pointing out to the reply filed by the Deputy Collector, Panchmahal submits that it is true that while exercising revisional Page 7 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022 C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022 powers under Section 76A of the Tenancy Act, the petitioners were not heard. However, he also drew attention of this Court to the affidavit in reply filed by the respondent No.3, wherein, in paras 7 to 10, the following averments are made:
"7. It is stated that the aforementioned circular dated 28.8.2017 came to be amended vide circular dated 15.9.2017 issued by the office of Collector, Panchmahals-Godhra, whereby certain clarifications were issued for smooth implementation of the instructions issued vide the earlier circular. However, the instruction that proceedings by way of an Appeal or Revision against any order of Mamlatdar & A.L.T would lie before the offence of Collector, Panchmahals- Godhra, remain unchanged. A copy of the circular dated 15.9.2017 is annexed herewith and marked as "Annexure-R/2".
8 It is stated that the Petitioners had preferred an application for Revision on 20.4.2018, before the office of Collector, Panchmahals-Godhra, against the order dated 3.1.2018 passed by Respondent No.1 authority. In pursuance to the same, the office of Collector, Panchmahals-Godhra issued show cause notice dated 21.7.2018, intimating the hearing to be kept on 2.8.2018. A copy of the show cause Page 8 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022 C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022 notice dated 21.7.2018 issued by the office of Collector, Pnchmahals-Godhra, is already annexed as "Annexure-G" with the Petition.
9 It is stated that the office of Collector, Panchmahals-Godhra, issued a circular dated 25.2.2020, whereby the powers to adjudicate Appeal / Revision under Section 74-A & 76-A of the Act were rel-delegated to the Additional Collectors & Deputy Collectors, within their concerned Division. A copy of the circular dated 25.2.2020 is annexed herewith and marked as "Annexure-R/3".
10 It is stated that in pursuance to the circular dated 25.2.2020, the proceedings and case papers against the orders passed by Respondent NO.1 authority were returned to the office of answering Respondent by the office of Collector, Panchmahals-Godhra, vide its communication dated 1.7.2020, for its adjudication. A copy of the communication dated 1.7.2020 issued by the office of Collector, Panchmahals-Godhra to the office of answering Respondent is annexed herewith and marked as "Annexure-R/4".
5.1 By pointing out to the aforesaid averments, learned AGP submits that in any case, the appeal Page 9 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022 C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022 filed by the petitioners under Section 74 of the Tenancy Act will be heard on merit, and therefore, appropriate order be passed.
6 Having heard learned advocates for the parties and considering the provisions of the Tenancy Act, more particularly, considering the language of Section 76A of the Tenancy Act wherein it is categorically provided that where no appeal has been filed within the period provided for it, the Collector may, suomotu or on a reference made in this behalf by the State Government, at any time,- (a) call for the record of any inquiry or the proceeding of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and (b) pass such order thereon as he deems fit. This would indicate that the revisional powers under Section 76A can be exercised by the Deputy Collector within a period of one year from the date on which the order passed by the Mamlatdar & ALT. However, there is a rider that such powers can Page 10 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022 C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022 be exercised only when there is no appeal filed challenging the order passed by the Mamlatdar & ALT. Here in the instant case, the order dated 3.1.2018 passed by the Mamlatdar & ALT was carried in appeal under Section 74 of the Act by the petitioner on 19.4.2018. That was well within the period of one year and during the pendency of the appeal preferred by the petitioners under Section 74 of the Tenancy Act, the Deputy Collector, Panchmahal has exercised revisional powers, which is not in consonance with the provisions of Section 76A of the Tenancy Act. Further, as it transpires from the record as well as the submissions made by learned AGP that the impugned order dated 14.7.2020 was passed by the Deputy Collector, Panchmahal without hearing the petitioner, and therefore, it also suffered from the principles of natural justice.
6.1 Now, in view of the fact that the order dated 3.1.2018 is already challenged by the petitioners by filing appeal under Section 74 of the Tenancy Act, interest of justice would be served if the order dated 14.7.2020 is quashed and set aside Page 11 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022 C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022 for the reason that when the order was passed, appeal preferred by the petitioner was already pending and on the ground of principles of natural justice as well as by taking into consideration the provisions of Section 76A, which is applicable only in cases wherein no appeal is preferred within the period provided for it, as the language itself clearly suggests.
6.2 What is important is, to examine the order passed by the Mamlatdar & ALT, and not under which proceedings the same is being examined. When the petitioners have challenged the order dated 3.1.2018 before the Collector, Panchmahal, the powers are delegated to the Deputy Collector, Panchmahal for appeal as well as revision, the Deputy Collector was in a position to examine the order dated 3.1.2018 after hearing the petitioners in the appeal preferred by the petitioner under Section 74 of the Act. Further, when the appeal under Section 74 was already preferred and was pending before the Deputy Collector, there was no need to exercise powers under Section 76A. Though the appeal under Section 74 of Page 12 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022 C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022 the petitioner was pending, the Deputy Collector, without hearing the petitioners, exercised the powers under Section 76A in violation of principles of natural justice, and therefore, that order is required to be quashed and set aside. However, such proceedings cannot be once again initiated by the Deputy Collector by stating that, that order is quashed only for violation of principles of natural justice and what would remain now is only appeal preferred by the petitioner under Section 74 of the Tenancy Act, and the Collector or whosoever the authority, which is prescribed as per the Act and as per the subsequent circulars, will have an opportunity to examine the order dated 3.1.2018 passed by the Mamlatdar & ALT.
7 In view of the above following order is passed.
[a] Order dated 14.7.2020 passed by the Deputy Collector, Panchmahal at Godhra in Ganot/76(A)/Avlokan/Case No.06 of 2020 is here by quashed and set aside.
Page 13 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022 C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022 [b] The authority is directed to hear and decide the pending appeal preferred by the petitioners under Section 74 of the Tenancy Act permitting the petitioners to place any additional material on record, including the written submissions and judgments. [c] After giving sufficient opportunity to the petitioners, the authority is directed to decide the appeal preferred by the petitioners on merits.
[d] It is clarified that rights and contentions of the parties are kept open.
[e] While deciding the appeal preferred by the petitioners, the authority shall not be influenced by the order dated 14.7.2020 which is quashed and set aside by this Court and it is directed to hear and decide the aforesaid appeal afresh on its own merits.
Page 14 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022 C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022 8 With the aforesaid observations and directions, this appeal is partly allowed. Rule is made absolute to the aforesaid extent only. Notice discharged. However, there shall be no order as to costs.
Sd/-
(NIRZAR S. DESAI,J) P. SUBRAHMANYAM Page 15 of 15 Downloaded on : Tue Mar 15 21:03:39 IST 2022