Gujarat High Court
Dhirubhai Lakhabhai Radadiya vs State Of Gujarat on 29 August, 2019
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/14510/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14510 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI : Sd/
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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DHIRUBHAI LAKHABHAI RADADIYA
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR PREMAL S RACHH(3297) for the Petitioner(s) No. 1
MR KM ANTANI AGP for the Respondent(s) No. 1 2
MR TRILOK J PATEL(658) for the Respondent(s) No. 3
for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 29/08/2019
ORAL JUDGMENT
1. Rule. Learned AGP Mr. K.M. Antani for respondent nos.1 and 2 and learned advocate, Mr. Trilok Patel for respondent no.3 waive service of notice of rule.
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C/SCA/14510/2019 JUDGMENT
2. Looking to the issue involved in the present
petition and with the consent of parties, the
present petition is taken up for final hearing.
3. This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has prayed for following reliefs, "(A) YOUR LORDSHIPS may be pleased to issue appropriate writ order or direction to quash and set aside the impugned order passed by the Respondent no.1 in Revision Application No. MVV/HKP/ SURAT/12/2018 (Annexure 'A'), as being illegal, unjust, arbitrary, without application of mind, contrary to the decision of this Hon'ble Court and violative of principal of natural justice.
(B) YOUR LORDSHIPS may be pleased to stay the implementation, execution and operation of the impugned order in Revision Application No. MVV/HKP/ SURAT/12/2018 (Annexure 'A') passed by the Respondent no.1 and further be pleased to direct the respondents to maintain status quo qua the possession and revenue record of the subject property, pending the admission, hearing and final disposal of this petition in the interest of justice' (C) xxx xxx xxx."
4. Heard learned advocate, Mr. Premal Rachh for the petitioner, learned AGP Mr. K.M. Antani for the respondent authority and learned advocate, Mr. Trilok Patel for the respondent no.3.
5. It is contended by learned advocate for the petitioner that the petitioner and the respondent nos.3 and 4 are the real brothers and the Page 2 of 10 Downloaded on : Sat Aug 31 01:08:35 IST 2019 C/SCA/14510/2019 JUDGMENT petitioner is the bonafide purchaser of the land bearing Survey No.51, Block No.75 admeasuring 29 37 HectorGunthaSq.Mtrs. situated at moje Village : Jetpore, Taluka : Palsana, District : Surat. It is the case of the petitioner that he has purchased the said land by registered sale deed by making payment of sale consideration to the respondent no.4. It is further stated that in the year 1989, the respondent no.4 purchased the land bearing Survey No.51, Block No.75 admeasuring 4 8461 HectorGunthaSq.Mtrs. situated at moje Village : Jetpore from one Jaswantbhai Chitubhai Patel and Ramanben Chitubhai Patel by way of registered sale deed and pursuant to the said registered sale deed, the revenue entry no.585 was mutated in the revenue record and since then, the respondent no.4 was the lawful owner and occupier of the subject land.
6. It is the further case of the petitioner that on 09.11.2009, the petitioner has purchased the part of the subject land admeasuring 29437 Hector GunthaSq.Mtrs. situated on southern side by way of registered sale deed from his elder brother i.e. the respondent no.4 and entry no.931 was Page 3 of 10 Downloaded on : Sat Aug 31 01:08:35 IST 2019 C/SCA/14510/2019 JUDGMENT posted in the revenue record on 19.12.2009, however at the time of certification of the said entry, the Deputy Mamlatdar, Palsana by misinterpreting the provisions of Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, 1947 ("Act of 1947" for short) refused to certify the registered sale entry of the petitioner, therefore, Entry No.931 was ordered to be cancelled by Deputy Mamlatdar on 03.05.2010.
7. Learned advocate for the petitioner has referred to the proceedings initiated pursuant to the cancellation of the said entry from the memo of petition and contended that by way of impugned order dated 08.04.2019, the respondent - SSRD has partly allowed the Revision Application and while partly allowing the Revision Application, gave certain directions to the concerned authority to initiate the proceedings under the Act of 1947 for violation of the provision of the Act of 1947. It is contended that the respondent SSRD has no jurisdiction to issue such type of direction to the authority under the provision of Act of 1947 to initiate proceedings. In support of such Page 4 of 10 Downloaded on : Sat Aug 31 01:08:35 IST 2019 C/SCA/14510/2019 JUDGMENT contention, learned advocate has placed reliance upon the decision rendered by this Court in case of Evergreen Apartment CoOp Housing Society Vs. Special Secretary, Revenue Department, reported in 1991 (1) GLR 113 as well as the decision in case of Vadliben Wd/o. Bhurabhai Narsanhji Purohit Vs. State of Gujarat & Ors., reported in 2017 (3) GLR 2010. After referring to the aforesaid decisions, it is contended that it is not open for the revenue authority to exercise the power under the Bombay Land Revenue Code ("the Code" for short) to decide the issue under the provisions of other Act and such direction cannot be issued to other authority to initiate proceedings and powers conferred under other enactment cannot be exercised while dealing with the question under another enactment.
8. It is further submitted that now pursuant to the direction given by the respondent SSRD, the Deputy Collector, Kamrej initiated proceedings under the Act of 1947. He, therefore, urged that the impugned order be set aside.
9. On the other hand, learned AGP Mr. Antani has placed reliance upon the decision rendered by this Page 5 of 10 Downloaded on : Sat Aug 31 01:08:35 IST 2019 C/SCA/14510/2019 JUDGMENT Court in case of Heirs of Haji Ismail Abdul Raheman Dadi Vs. Ramsing M. Baria & Ors., reported in 2000 (2) GLH (UJ) 5, wherein it is held that the officer of the revenue department, who is occupying different capacities under different Acts cannot exercise power under one enactment while proceeding under another enactment. It is further observed that, however merely the Collector has given direction to initiate proceedings under other enactment to the Mamlatdar and when no such proceedings have yet been initiated, it cannot be said that any procedural irregularity is committed. It is, therefore, urged that in the present case, merely the direction is given by the respondent SSRD to initiate proceedings under the Act of 1947, the petitioner cannot be said to be aggrieved by such direction and, therefore, this Court may not entertain this petition.
10. Learned advocate, Mr. Patel appearing for the respondent no.3 has submitted that now the proceedings are initiated under the Act of 1947 and it is always open for the concerned authority to initiate proceedings under the Act of 1947 if Page 6 of 10 Downloaded on : Sat Aug 31 01:08:35 IST 2019 C/SCA/14510/2019 JUDGMENT it is noticed that there is violation of provision of the Act of 1947. However, he has fairly submitted that such direction cannot be given by the respondent SSRD to the authority to initiate action under different Act while exercising powers under the Code. It is, therefore, submitted that this Court may pass appropriate orders with a liberty to the concerned authority to initiate proceedings under the Act of 1947 in accordance with law.
11. Having heard learned advocates for the parties and having gone through the material placed on record, it transpires that while deciding the issue about the entry made in the revenue record, the respondent - SSRD has given direction to the concerned authority under the Act of 1947 to initiate proceedings under the said Act and, therefore in the present petition, such aspect is required to be decided. Therefore in this petition, the issue which is to be considered by this Court is as to whether the respondent - SSRD can give direction to the authority under the Act of 1947 to initiate proceedings when the respondent - SSRD is exercising jurisdiction under Page 7 of 10 Downloaded on : Sat Aug 31 01:08:35 IST 2019 C/SCA/14510/2019 JUDGMENT Section 211 of the Code.
12. In case of Evergreen Apartment CoOp Housing Society (supra), this Court has considered similar issue and in the said decision, it is held that the power conferred under one enactment cannot be exercised while dealing with the question under another enactment.
13. Similarly in case of Vadliben Wd/o. Bhurabhai Narsanhji Purohit (supra), this Court has once again held that it is not open to the revenue authority exercising powers under the Code to decide in respect of breaches under other enactment.
14. In case of Heirs of Haji Ismail Abdul Raheman Dadi (supra), upon which learned AGP has placed reliance upon, this Court has observed that it is true that the officer of the revenue department, who is occupying different capacities under different Acts cannot exercise power under one enactment while proceeding under another enactment. However merely because the Collector has given direction to initiate proceedings under the Tenancy Act to the Mamlatdar, it cannot be said that any procedural irregularity is Page 8 of 10 Downloaded on : Sat Aug 31 01:08:35 IST 2019 C/SCA/14510/2019 JUDGMENT committed. However in the said case, this Court has specifically observed that such proceedings were not yet initiated by the concerned authority pursuant to the direction given by the Collector.
15. Keeping in view the aforesaid decisions, if the facts of the present case, as discussed hereinabove, are examined, it is clear that Revision Application filed by the concerned applicant - present respondent no.3 came to be partly allowed and while allowing the said application, further direction was given by the respondent - SSRD to the authority under the Act of 1947 to initiate proceedings for violation of the said Act. It is not in dispute that pursuant to the direction given by the respondent - SSRD, now the proceedings are already initiated by the Deputy Collector, Kamrej Pranch. Thus because of the direction issued by the respondent - SSRD, now the proceedings are initiated under the Act of 1947 by the Deputy Collector against the petitioner. From the aforesaid decisions rendered by this Court, it is clear that such type of direction cannot be issued by the respondent - SSRD while exercising jurisdiction under Section Page 9 of 10 Downloaded on : Sat Aug 31 01:08:35 IST 2019 C/SCA/14510/2019 JUDGMENT 211 of the Code. Thus only on this ground, the impugned order deserves to be quashed and set aside.
16. Accordingly, the present petition stands allowed.
The impugned order dated 08.04.2019 passed by the respondent - SSRD at AnnexureA is hereby quashed and set aside. As a corollary, the proceeding initiated pursuant to the order of the respondent
- SSRD at AnnexureA under the Act of 1947 is also set aside. However at this stage, it is clarified that it is always open for the concerned authority under the Act of 1947 to initiate proceeding if the said authority is of the opinion that the petitioner has violated the provision of the Act of 1947. Thus it is kept open for the competent authority under the provision of the Act of 1947 to initiate proceeding afresh independently. If such proceedings are initiated by concerned authority under the Act of 1947, it is open for the parties to take all available contentions. Rule is made absolute to the aforesaid extent.
Sd/ (VIPUL M. PANCHOLI, J.) Gautam Page 10 of 10 Downloaded on : Sat Aug 31 01:08:35 IST 2019