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[Cites 1, Cited by 6]

Gujarat High Court

Babubhai Ganeshbhai Dabhi vs The State Of Gujarat on 23 October, 2020

Author: Bela M. Trivedi

Bench: Bela M. Trivedi

         C/SCA/9253/2020                                         ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 9253 of 2020
                             With
         R/SPECIAL CIVIL APPLICATION NO. 9204 of 2020
                             With
         R/SPECIAL CIVIL APPLICATION NO. 10587 of 2020
                             With
         R/SPECIAL CIVIL APPLICATION NO. 9254 of 2020
                             With
         R/SPECIAL CIVIL APPLICATION NO. 10585 of 2020
                             With
         R/SPECIAL CIVIL APPLICATION NO. 9660 of 2020
                             With
         R/SPECIAL CIVIL APPLICATION NO. 10495 of 2020
==========================================================
                  SHAMBHUBHAI POPATBHAI CHAUHAN
                                Versus
                   THE STATE OF GUJARAT & 3 other(s)
==========================================================
Appearance:
MR RAJESH O GIDIYA(5222) for the Petitioner(s) No. 1
MS.JYOTI BHATT, AGP, (1) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4
==========================================================

 CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI

                             Date : 23/10/2020

                               ORAL ORDER

1. In this batch of seven petitions, the petitioners have challenged the order dated 17/18.07.2020 passed under section 61 of the Bombay Land Revenue Code (hereinafter referred to as 'the said Code') passed by the respondent No. 3 ­ Mamlatdar and also the notice dated 27.07.2020 issued by him under section 202 of the said Code. All the petitions therefore were heard together and this common order is being passed.

2. For the purpose of brevity, the facts of petition being Special Civil Application No. 10495 of 2020 are taken into consideration.

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3. The petitioner claiming to be in occupation of part of the Government waste land bearing Survey No. 105 paiki admeasuring 10 bighas situated at Nava Madhiya, Taluka and District Bhavnagar, was served with the notice dated 09.07.2020 (Annexure 'F') by the respondent No. 3 calling upon him, to show cause as to why an action should not be taken against him under section 61 of the said Code as the petitioner was in unauthorized occupation of the said land in question. As per the said notice, the hearing of the case was fixed on 13.07.2020. According to the petitioner, he had remained present before the respondent No. 3 Mamlatdar on 13.07.2020, and had requested for some time for filing objections / reply to the said notice taking into consideration the prevailing situation of COVID­19 pandemic, however, the respondent No. 3­ Mamlatdar granted only one day's time and kept the hearing on 14.07.2020. On 14.07.2020, the Advocate of the petitioner remained present before the respondent No. 3 and sought time, which was not granted by the respondent No. 3. The respondent No. 3 thereafter passed the impugned order dated 17/18.07.2020 holding that the petitioner was in unauthorized occupation of the land in question and was liable to pay the penalty as stated therein under Section 61 of the said Code. It appears that the respondent No. 3 thereafter issued another notice under section 202 of the Code calling upon the petitioner to remove the encroachment on or before 03.08.2020, further stating that if he failed to do so, the same would be removed by the respondent Page 2 of 11 Downloaded on : Thu Feb 25 00:03:18 IST 2021 C/SCA/9253/2020 ORDER authority at the risk and cost of the petitioner. Being aggrieved by the said order passed under section 61 and the notice issued under section 202 of the Code, the present petition has been filed. Similar orders have also been passed and notices issued against the other petitioners in the tagged petitions.

4. The Court while issuing the notice to the respondents on 08.09.2020, had directed the Deputy Mamlatdar (Encroachment) Bhavnagar (Rural), who had prepared panch rojkam (Annexure 'E') to file an affidavit as to on what basis, he had mentioned about the encroachment being there since last 25 years. The Deputy Mamlatdar Mr.Pravindan N. Khadiya has therefore filed the affidavit explaining the situation and further stated interalia that while filling up the L & D Form, required to be filled up as a part of procedure to be followed under section 61 of the Code, through mistake, he had mentioned of 25 years against the column of years for encroachment at Serial No. 4 of the said form, and that he sincerely apologized for the said mistake. The petitioner has filed affidavit­in­rejoinder.

5. Learned advocate Mr. Gidiya appearing for the petitioners in all the petitions submitted that the respondent No. 3 had passed the impugned order under section 61 of the Code without any authority of law and in violation of principles of natural justice, and therefore, such order is liable to be set aside and the subsequent notice issued under Page 3 of 11 Downloaded on : Thu Feb 25 00:03:18 IST 2021 C/SCA/9253/2020 ORDER section 202 of the Code relying upon the said order under section 61 also is liable to be set aside. Mr. Gidiya had also relied upon the decision of Full Bench in the case of Government of Gujarat Vs. Amraji Mouji Thakor and Anr., reported in 1991(2) GLH 606 to substantiate his submission that the principles of natural justice are required to be followed before taking action under section 61 of the Code. Mr. Gidiya also relied upon the orders passed by the Coordinate Benches in respect of the similar orders passed and the notices issued by the respondent No. 3

- Mamlatdar, whereby the Coordinate Benches while setting aside the said orders had directed the Mamlatdar to hear the matter afresh after giving the opportunity of hearing to the petitioner, fixing a time bound programme.

6. The learned AGP Ms. Jyoti Bhatt, however, vehemently submitted that there being an alternative remedy available to the petitioners for challenging the impugned orders passed by the respondent No. 3 under section 61 and also the notices under section 202, the Court should not exercise the extraordinary jurisdiction under Article 226 of the Constitution of India. Placing reliance on the decision of Division Bench in the case of PETHABHAI NARANBHAI GALCHAR Versus STATE OF GUJARAT & Ors., reported in 2017 (2) GCD 970, she submitted that no opportunity of hearing was required to be given to the petitioner before taking an action under section 202 of the Code. She also submitted that the impugned orders were passed Page 4 of 11 Downloaded on : Thu Feb 25 00:03:18 IST 2021 C/SCA/9253/2020 ORDER on 17/18.07.2020 under section 61 of the Code, in which it was mentioned that the petitioners could challenge the same before the Deputy Collector, however, it remained unchallenged, as a result thereof, the notice under section 202 of the Code came to be issued on 27.07.2020, and thereafter, the present petition was filed after much delay of about 15 days of the impugned order. She also relied upon the order dated 15.4.1957 passed by the Collector under Section 12 of the Code delegating the powers under the Code and the Rules to the Mamlatdar to submit that the respondent No.3 had duly exercised the powers conferred upon him for taking action under Section 61 and 201 of the Code.

7. At the outset, it may be noted that undisputedly the petitioners in all the petitions were served with the notices under section 61 of the Code calling upon them to explain as to why the action should not be taken under the said provision as they were found to be in unauthorized occupation of the land in question. The petitioners sought time on the date fixed for the hearing i.e.13.7.2020 and the matters were kept on 14.7.2020 on which date again the Advocate for the petitioners sought time which was not granted by the respondent No.3 and the impugned order dated 17.7.2020 came to be passed under Section 61 of the Code holding that the petitioners were in unauthorized occupation of the Government land since last 2 years and were liable to pay the penalty as mentioned therein. It was also Page 5 of 11 Downloaded on : Thu Feb 25 00:03:18 IST 2021 C/SCA/9253/2020 ORDER stated therein that the petitioners could challenge the said order before the Deputy Collector by filing an appeal, however, the same was not challenged. Thereafter, the Notices under Section 202 of the Code came to be issued by the respondent No. 3 Mamlatdar seeking summary eviction of the petitioners from the unauthorized occupation of the lands in question.

8. As rightly submitted by the learned AGP Ms.Jyoti Bhatt for the respondent State, the respondent No.3 having been delegated with the powers of the Collector as contemplated in Section 12 of the Code, he had exercised the powers under Section 61 and Section 202 of the Code, and he being a Revenue Officer, his decisions or orders in performance of the duties and in exercise of the powers conferred upon him or delegated upon him, would be subject to the provisions of Chapter XIII which pertain to the Appeals and Revisions. Section 203 of Chapter XIII provides as under:­ "203. Appeal to lie from any order passed by a revenue officer to his superior.­ In the absence of any express provision of this Act, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under this Act or any other law for the time being in force, to that officer's immediate superior, whether such decision or order may itself have been passed on appeal from a subordinate officer's decision or order or not."

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9. In view of the above, the respondent No.3 being a Revenue Officer, the decision or order passed by him would be appellable before the Officer immediately superior to him. The impugned order dated 17/18.7.2020 also mentioned that the aggrieved petitioners could challenge the said order before the Deputy Collector, Bhavnagar by filing an appeal. Thus, since a statutory alternative remedy of filing an appeal being provided under Section 203 of the Code, the petitioners could not have challenged the impugned order/notice before this Court by invoking the extraordinary writ jurisdiction under Article 226 of the Constitution of India. The petitions therefore as such deserve to be dismissed on that ground alone.

10. The Court, also does not find much substance in the submission made by the learned Advocate Mr.Gidiya for the petitioners that there was violation of principles of natural justice at the instance of the respondent No.3 while passing the impugned order dated 17/18.7.2020 under Section 61 of the said Code, inasmuch as the petitioners were served with the notices before passing the impugned order, calling upon them to show cause as to why the action under Section 61 of the Code should not be taken against them, they being in unauthorized occupation of the lands in question, however, they sought time twice on 13th and 14th of July, 2020. It may be noted that admittedly the lands in question are Government waste lands and the petitioners are in Page 7 of 11 Downloaded on : Thu Feb 25 00:03:18 IST 2021 C/SCA/9253/2020 ORDER unauthorized occupation of the said lands. Mr. Gidiya had also failed to show any legal right of the petitioners to continue to be in possession of the said land. There is nothing on record to suggest as to how the petitioners came to occupy the lands in question. It may also be noted that the inquiry under Section 61 of the said Code would be a kind of summary inquiry and the person found in unauthorized occupation of the Government land is liable to be evicted summarily, of course, after following the principles of natural justice, under Section 61 and Section 79A of the Code. As held by the Full Bench in case of Government of Gujarat Vs. Amraji Mouji Thakor and Anr. (supra), no opportunity of hearing is required to be given before taking action under Section 202 of the said Code.

11. So far as the facts of the present case are concerned, the respondent No.3 Mamlatdar having issued the notices before passing the impugned order under Section 61 of the Code, it could not be said that the petitioners were not given opportunity of hearing, nonetheless considering the prevailing pandemic situation in the entire country, the propriety required that the respondent No.3 Mamlatdar should have granted some more time instead of granting one or two days to the petitioners to explain their case. The learned Advocate Mr.Gidiya for the petitioners has relied upon the orders passed by the Coordinate Benches in other petitions filed by other petitioners similarly situated as the Page 8 of 11 Downloaded on : Thu Feb 25 00:03:18 IST 2021 C/SCA/9253/2020 ORDER petitioners, in which such orders / notices are set aside and the Mamlatdar has been directed to grant one more opportunity to the petitioners. Hence, though this Court does not find substance in the present petitions, without stretching the matter any further and in order to maintain parity, is inclined to grant one more opportunity to the present petitioners also.

12. In that view of the matter, following directions are given :

(1) Orders dated 17/18.7.2020 passed by the respondent authority are quashed and set aside and it is directed that the respondent No. 3 shall decide the matters afresh after giving one more opportunity of hearing to the petitioners.
(2) The petitioners shall file reply the respondent­ Mamlatdar within one week from today, as undertaken by learned advocate Mr. Gidiya. 
        (3)       As    soon    as    the      reply        is      filed         by     the
        petitioners,            the       respondent          Mamlatdar              shall
decide the same within one week thereafter in accordance with law. It shall be open for the petitioners to remain personally present or through their Advocates for making their respective submissions during the course of hearing on the date fixed by the Mamlatdar, Page 9 of 11 Downloaded on : Thu Feb 25 00:03:18 IST 2021 C/SCA/9253/2020 ORDER but shall not seek adjournment.

13. Before parting, it may be noted that in response to the order dated 8.9.2020 passed by the Court, the Deputy Mamlatdar (Encroachment) Bhavnagar (Rural) had filed the affidavit stating inter alia while filling up the L & D Form, required to be filled up as a part of procedure to be followed under section 61 of the Code, he had through mistake mentioned 25 years against the column of year for encroachment at Serial No. 4 of the said form, and that he apologized for the said mistake. The Court does not find any ring­of­truth in the said affidavit filed by the Deputy Mamlatdar that it was a mistake on his part to mention 25 years while filling up the L & D Forms. A mistake could occur in one or two forms, and not in all forms. It was only because the Court called upon him to file affidavit, he has come out with a lame excuse of having committed the mistake. The Court has therefore reason to believe that this was a deliberate act on the part of the Deputy Mamlatdar to fill up the column in the form to favour the petitioners. Even if his statement in the affidavit that it was a mistake is believed then also it is a serious matter as such mistakes could cause great damage to the interest of the Government. If it was a deliberate act, the matter becomes more serious. Every Government servant is expected to discharge his duties with utmost care and sincerity and with honesty. When the Court had passed the order directing him to remain present before the Page 10 of 11 Downloaded on : Thu Feb 25 00:03:18 IST 2021 C/SCA/9253/2020 ORDER Court through videoconferencing, he had reiterated the same thing which was not accepted by the Court. Be that as it may, the Court leaves the issue with the observation that it will be open for the concerned authority of the State to take action against him as deemed fit in accordance with law.

14. Subject to the afore­stated directions and observations, all petitions stand disposed of accordingly.

(BELA M. TRIVEDI, J) SINDHU NAIR /vinod Page 11 of 11 Downloaded on : Thu Feb 25 00:03:18 IST 2021