Gujarat High Court
Ishwar Icchubhai Patel vs State Of Gujarat Thro Secretary & 3 on 16 April, 2014
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/495/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 495 of 2013
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ISHWAR ICCHUBHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT THRO SECRETARY & 3....Respondent(s)
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Appearance:
MR R S SANJANWALA, SR ADVOCATE assisted by MR DILIP L KANOJIYA,
ADVOCATE for Petitioner(s) No. 1
MS SHRUTI PATHAK, AGP for Respondent(s) No. 1-3
NOTICE SERVED for Respondent(s) No. 1, 4
NOTICE SERVED BY DS for Respondent(s) No. 1- 4
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 16/04/2014
ORAL ORDER
Heard Senior Advocate Mr. R. S. Sanjanwala assisted by learned advocate Mr. Dilip L. Kanojoya for the petitioner and learned Assistant Government Pleader Ms. Shruti Pathak for respondent Nos.1 to 3. Though served with Rule of this Court, none appears for respondent No.4.
2. What is called in question by the petitioner in this petition is the order dated 21.09.2012 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BS/98/2003. The Tribunal partially allowed the Revision of the State Government setting aside the order dated 08.06.2000 of the Deputy Collector passed in Revision Appeal No.1 of 2000. The Tribunal thereafter directed remand of the matter to the Deputy Collector for decision afresh.
Page 1 of 7 C/SCA/495/2013 ORDER2.1 For remanding the matter, the only question which weighed with the Tribunal was that the Deputy Collector, while passing the said order dated 08.06.2000, inter alia took into account the aspect of breach of section 73AA which he could not have done, since it was arising under the different law, whereas the Deputy Collector had been exercising powers under the other Statute.
3. The facts in the background may be stated for better comprehension of the controversy. The petitioner herein came to be declared as tenant by order dated 27.07.1999 of the Competent Authority- the Mamlatdar in Tenancy Case No.17 of 1999 which was under section 70(O) of the Bombay Tenancy and Agricultural Lands Act, 1948. Thereafter, the Deputy Collector issued notice dated 13.01.2000, taking the aforesaid order dated 27.07.1999 in suo motu revision. It was on the ground that there was breach of section 73AA of the Bombay Land Revenue Code, 1879.
3.1 The subject matter land bearing Revenue Survey No.340, admeasuring 3035 sq. mtrs., situated at Village Rander, Taluka Choryasi, District Surat, was originally belonged to one Somiben Chhaniya. The land was subjected to restrictions imposed under section 43 of the Bombay Tenancy & Agricultural Lands Act, 1948 and was classified as new tenure land. The present petitioner claims to have succeeded to the property under the Will executed by the deceased Somiben on 02.01.1997. The power for taking the Mamlatdar's order in suo motu revision for the alleged breach of section Page 2 of 7 C/SCA/495/2013 ORDER 73AA, as aforesaid, was exercised by the Deputy Collector on the ground that the Will executed in favour of the petitioner could not have been competently executed and that it was an invalid transfer in view of section 73AA of the Code.
3.2 The suo motu proceedings initiated as aforesaid culminated into order dated 08.06.2000. Thereby, the Deputy Collector upheld the order dated 27.07.1999, holding that lifting fetters under section 43 in respect of land in question by the Mamlatdar was proper. However, while accepting the legality of the said order dated 27.07.1999, the Deputy Collector, at the same time, directed that the separate proceedings for breach of section 73AA of the Code were required to be initiated. Such proceedings were taken out. By order dated 30.09.2002, the Deputy Collector, after examining the issue in detail, held that there was no breach of section 73AA. Resultantly, notice dated 02.03.2001 issued in that regard was withdrawn. Accordingly, as far as the aspect of breach of section 73AA was concerned, the matter finally rested there, the Competent Authority having held that breach was not established.
3.3 The State Government thereafter challenged the order of the Deputy Collector dated 08.06.2000, in so far as it upheld the order of the Mamlatdar dated 27.07.1999 by filing Revision Application before the Gujarat Revenue Tribunal which culminated into the impugned order. As stated above, the Tribunal remanded the matter to the Deputy Collector, referring to the Page 3 of 7 C/SCA/495/2013 ORDER aspect of notice issued regarding breach of section 73AA and by reasoning further in that context that the Deputy Collector could not have directed initiation of those proceedings, as he was not exercising the powers under the Code, but was acting as authority under the different Statute, namely Bombay Tenancy Act.
4. Learned Senior Counsel for the petitioner submitted that question of breach of section 73AA raised at one point of time by the Deputy Collector at one stage was put to an end finally. He submitted that the suo motu proceedings initiated separately in that respect were concluded and the notice for breach was dropped. He submitted that the Tribunal's order remanding the case to the Deputy Collector was entirely unnecessary.
4.1 The respondent-State resisted the petition by filing affidavit dated 04.04.2014. Learned AGP, with reference to contentions raised in the affidavit, vehemently submitted that the remand order by the Tribunal to the Deputy Collector was proper and not liable to be interfered for the reasons, firstly that the Mamlatdar had no jurisdiction to pass the order dated 27.07.1999. It was next submitted that sub- clause (O) of section 70 has been amended, and by virtue of the amendment in clause (O), the Mamlatdar is now required to decide the matter which may be referred by the State Government, while previously existing clause before amendment provided that the Mamlatdar may decide the matters referred to him under the Act. Therefore, it was submitted that without Page 4 of 7 C/SCA/495/2013 ORDER prior permission of the Deputy Collector, the Mamlatdar could not have acted to pass the order in question.
5. The subject matter of challenge before the Tribunal, at the instance of the State Government, was the said order dated 27.07.1999 of the Mamlatdar confirmed by the Deputy Collector in his order dated 08.06.2000. Whether the order of the Mamlatdar, lifting the restrictions under section 43 of the Tenancy Act, was proper and legal, was required to be examined by the Tribunal. The Tribunal did not examine the same, but instead, diverted itself to the aspect of breach of section 73AA and with the reasoning aforesaid, remanded the case.
5.1 This approach of the Tribunal was indeed an approach in futility. From the facts narrated above, it was evidently seen that the aspect of breach of section 73AA lost its relevance, if at all, it was relevant, as it was never surviving. It was non- existant ground in as much as the suo motu proceedings initiated on that issue ended with order dated 30.09.2002, wherein the Collector concluded that there was no breach of the said provisions. The question attained finality there. Therefore, there was no occasion for the Tribunal to refer, much less rely on, the said aspect and to remand the case to the Deputy Collector on that premise.
5.2 In other words, in remanding the matter, the Tribunal's order suffered from total non application Page 5 of 7 C/SCA/495/2013 ORDER of mind. It was based on irrelevant consideration and non-extant factor. What the Tribunal was supposed to consider and examine was the legality of the order dated 27.07.1999 confirmed by the Deputy Collector by order dated 08.06.2000 passed in Tenancy Case No.1 of 2000. In remanding the matter, the order of the Tribunal was misdirected. The Tribunal missed focus of the matter and committed a manifest error.
6. In the circumstances, it is considered appropriate and apposite that the Revenue Tribunal re- examines the matter with regard to the subject matter of challenge before it, which was order dated 27.07.1999 of the Mamlatdar to the merits of which, it did not adverted to. Therefore, the matter deserves to be remitted back to the Tribunal for the said purpose.
6.1 The contentions canvassed by learned AGP do not call for examination in the present petition, having regard to the course adopted by this Court in this order of remanding the matter to the Tribunal and the grounds and considerations on which, the remand is being ordered.
7. In light of the above discussion, the impugned judgment and order dated 21.09.2012 passed by the Gujarat Revenue Tribunal remanding the matter to the Deputy Collector is hereby quashed and set aside and the Tribunal is directed to redecide Revision Application NO. TEN/BS/98/2003 by answering on merits the challenge before it, being the order dated 27.07.1999 of the Mamlatdar. The Tribunal shall Page 6 of 7 C/SCA/495/2013 ORDER complete this exercise within six months from the receipt of/production of certified copy of this order.
8. All the contentions of both the sides are at large to be agitated before the Tribunal. The remand is on the aforesaid sole consideration that the order of the Tribunal was based on a factor which was irrelevant and non-existant. While deciding the Revision afresh, the Tribunal shall consider the contentions of both the sides and render its decision strictly on merits and in accordance with law.
9. It is clarified that this Court has not gone into the merits of the case of either side with regard to subject matter of challenge before the Tribunal.
10. Petition is allowed accordingly. Rule is made absolute to the extent aforesaid.
(N.V.ANJARIA, J.) Chandrashekhar Page 7 of 7