Vallabhbhai Rudabhai Miyani vs State Of Gujarat on 4 January, 2021

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Gujarat High Court

Vallabhbhai Rudabhai Miyani vs State Of Gujarat on 4 January, 2021

Bench: Bhargav D. Karia

         C/SCA/7110/2017                                          ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 7110 of 2017

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                      VALLABHBHAI RUDABHAI MIYANI
                                 Versus
                       STATE OF GUJARAT & 5 other(s)
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Appearance:
MR JIGAR P RAVAL(2008) for the Petitioner(s) No. 1
MR K.M.ANTANI, AGP for the Respondent(s) No. 1
MR MB GOHIL(2702) for the Respondent(s) No. 7,8
NOTICE SERVED(4) for the Respondent(s) No. 1,2,4,5
NOTICE UNSERVED(8) for the Respondent(s) No. 3
VIRAL K SHAH(5210) for the Respondent(s) No. 6
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 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 04/01/2021

                              ORAL ORDER

Heard learned advocate Mr. Jigar Raval for the petitioner, learned advocate Mr. Viral Shah for respondent no.6, learned advocate Mr. M.B. Gohil for respondents no.7 and 8 and learned Assistant Government Pleader Mr. K.M. Antani for the respondentState through video conference.

1. By this petition, under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:

"(A) Your Lordship may be pleased to admit and allow this petition.

(B) Your Lordship may be pleased to issue a appropriate writ, order or direction for quashing and setting aside the Page 1 of 12 Downloaded on : Fri Feb 12 16:05:55 IST 2021 C/SCA/7110/2017 ORDER impugned order i.e. order AnnexureC passed by the The Special Secretary, Revenue Department (Appeals), Ahmedabad on 6/4/2016 in Revision Application No.MVV/HKP/SAT/178/2013.

(C) Pending hearing and till final disposal of this petition, Your Lordship may be pleased to stay the implementation, operation and execution of the impugned order i.e. order AnnexureC passed by the Special Secretary, Revenue Department (Appeals), Ahmedabad on 6/4/2016 in Revision Application No.MVV/HKP/SAT/178/2013.

(D) Any other relief deemed just and proper may pleased be granted in the interest of justice."

2. The brief facts of the case are as under:

2.1. It is the case of the petitioner that the dispute in this petition is in respect of the land bearing survey/Block No.132 ad measuring 19740 sq.mtrs. of village Oviyan, Taluka Kamraj, District Surat. The petitioner purchased the said land from the ownerMuljibhai Govindbhai Parmar by a registered sale deed dated 25.02.2004. A revenue entry no.1468 was mutated in the village Form No.6 on or about 31.03.2004 regarding the same.

2.2. It is the case of the petitioner that for the certification of the said entry, the petitioner produced a certificate regarding his status as an agriculturist before the authority, but at the relevant point of time, authority insisted for Page 2 of 12 Downloaded on : Fri Feb 12 16:05:55 IST 2021 C/SCA/7110/2017 ORDER affidavit of the seller for certification of the entry. Because of the nonproduction of the affidavit of the seller, the authority did not certify the entry no.1468 regarding the sale deed of the petitioner.

2.3. The petitioner therefore, filed RTS Appeal NO.144/2008 (Old No.25/2007) before the Deputy Collector, Olpad. The Deputy Collector, Olpad by order dated 21.08.2009 rejected the said appeal.

2.4. Against the said order of the Deputy Collector, the petitioner preferred RTS Appeal No.8/2010 before the Collector, Surat. The Collector, Surat vide order dated 01.04.2011 rejected the said appeal.

2.5. Against the above orders, the petitioner preferred Revision Application No. MVV/HKP/SAT/153/2011 before the Secretary Revenue (Appeals). The Secretary, after hearing both the parties, partly allowed the revision by order dated 30.08.2013 and quashed and set aside the orders of the lower authorities and remanded the matter back to the Mamlatdar, Kamrej.

2.6. It is the case of the petitioner that during the pendency of the above entry proceedings, regarding the sale deed of the petitioner, the Page 3 of 12 Downloaded on : Fri Feb 12 16:05:55 IST 2021 C/SCA/7110/2017 ORDER private respondent on the basis of absolutely forged and concocted Will dated 08.09.2009 of original owner, i.e. Muljibhai Govindbhai Parmar, applied before the Revenue authority to mutate his name. The Revenue authority posted the entry no.1648 on or about 04.02.2010 regarding the same. The said entry was certified by the Mamlatdar by order dated 01.07.2010.

2.7. Against the aforesaid order of the Mamlatdar, the petitioner preferred RTS Appeal No.93/2010 before the Deputy Collector, Bardoli.

The Deputy Collector by order dated 22.03.2011 rejected the same.

2.8. It is the case of the petitioner that against the said orders, the petitioner preferred RTS Appeal No.185/2011 before the Collector, Surat. The Collector by order dated 29.08.2013 rejected the same and further directed the Mamlatdar Kamrej to initiate proceeding Under Section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short "the Act, 1948").

2.9. Against the order of the Collector dated 29.8.2013, the petitioner preferred Revision Application No.MVV/HKP/SAT/178/2013 before the respondent no.2Secretary Revenue (Appeals) who Page 4 of 12 Downloaded on : Fri Feb 12 16:05:55 IST 2021 C/SCA/7110/2017 ORDER by order dated 06.04.2016 rejected the Revision Application of the petitioner.

2.10. It is the case of the petitioner that after the remand order dated 30.8.2013 passed by the Secretary, Revenue Department (Appeals) and the order passed by the Collector, Surat dated 29.08.2013 to initiate proceeding under Section 84C of the Act, 1948, the Mamlatdar & ALT, Kamrej initiated the common proceeding bearing no.Tenancy /Section/84C/Case No./2/2014. The Mamlatdar & ALT, Surat by order dated 14.02.2014 withdrew the notice, issued under Section 84C of the Act, 1948 regarding the said land and certified entry No.1468 with regard to sale deed of the petitioner.

2.11. Against the aforesaid order dated 14.2.2014, the private respondents initiated the Tenancy/Appeal No.9/2014 before the Deputy Collector, Kamrej who by order dated 31.03.2015 rejected the said appeal.

2.12. Against the order dated 31.3.2015, the private respondents initiated the Revision Application No.TEN/BS/54/2015, before the Gujarat Revenue Tribunal, Ahmedabad. The Gujarat Revenue Tribunal, Ahmedabad by its judgment and order dated 29.10.2016, rejected the Revision Page 5 of 12 Downloaded on : Fri Feb 12 16:05:55 IST 2021 C/SCA/7110/2017 ORDER Application of the private respondent.

3. Learned advocate Mr.Raval for the petitioner submitted that the impugned order passed by the Secretary, Revenue Department (Appeal) is contrary to the order passed by the Gujarat Revenue Tribunal, as the order passed by the Secretary, Revenue Department (Appeal) is prior in point of time then that of the order passed by the Gujarat Revenue Tribunal confirming the order passed by the Deputy Collector in the composite proceedings under Section 84C of the Act, 1948, as well as revenue entry proceedings.

4. He submitted that the Deputy Collector, by order dated 31.03.2015 passed in Tenancy Appeal no.9 of 2014 ordered to certify the entry no.1468 dated 31.03.2004 for the sale deed in favour of the petitioner and cancelled the entry no.1648 and entry no.1684, which have been mutated pursuant to the Will in favour of the respondent no.6. It was therefore prayed that the impugned order, passed by the Secretary, Revenue Department (Appeals), in Revision Application no.MVV/HKP/SAT/178/2013 challenging the order dated 29.08.2013 passed by the Collector is required to be quashed and set aside.

5. On the other hand, learned advocate Mr.Viral Page 6 of 12 Downloaded on : Fri Feb 12 16:05:55 IST 2021 C/SCA/7110/2017 ORDER Shah appearing for the respondent no.6 and learned advocate Mr.Gohil appearing for respondent nos.7 and 8 submitted that the impugned order passed by the Secretary is only with regard to the confirmation of the order dated 29.08.2013 passed by the Collector arising out of the entry proceedings of entry no. 1648 and entry no.1684 mutated in revenue record on the basis of Will in favour of the respondent no.6. It was submitted by learned advocate Mr.Gohil that respondent nos. 7 and 8 have purchased the land in question from the respondent no.6 by registered sale deed. Learned advocate Mr.Gohil submitted that three different litigations were preferred with regard to the land in question, by filing three different Suits which are Regular Civil Suit No.25 of 2013, Regular Civil Suit No.18 of 2016 and Regular Civil Suit No.29 of 2016 out of which, Regular Civil Suit No.25 of 2016, filed by respondent no.7 and 8 against the petitioner and the respondent no.6 is pending and interimrelief is granted whereas, Regular Civil Suit no. 18 of 2016 filed by the respondent no.6 against the petitioner is also pending and Regular Civil Suit No.19 of 2016, filed by the petitioner against the respondent nos.6 to 8 is dismissed for non prosecution. He therefore submitted that in such circumstances, the order passed by the Deputy Page 7 of 12 Downloaded on : Fri Feb 12 16:05:55 IST 2021 C/SCA/7110/2017 ORDER Collector and confirmed by the Gujarat Revenue Tribunal is subject to outcome of the Suit filed by the respondents no.6 to 8. It was submitted by learned advocate Mr.Gohil that the Collector passed the order dated 29.08.2013 in the Appeal filed by the petitioner challenging the order passed by the Mamlatdar confirming the entry no.1648, on the basis of the Will whereby the Collector directed to initiate the proceedings under Section 84C of the Gujarat Tenancy and Agricultural Lands Act, 1948. Against the order passed by the Collector on 29.08.2013, the petitioner preferred Revision Application No. MVV/HKP/SAT/178/2013, which was dismissed by the Secretary, Revenue Department (Appeal), by passing the impugned order. It was pointed out that meanwhile, the Deputy Collector has already passed the order dated 31.03.2015, in Tenancy Appeal No.9 of 2014 on the basis of the order dated 29.08.2013 passed by the Collector, for initiating proceedings under Section 84C of the Act, 1948 as well as the order dated 30.08.2013, passed by the Secretary, Revenue Department (Appeals) remanding the matter to the Mamlatdar. He therefore, submitted that in such circumstances, the order passed by the Secretary, Revenue Department (Appeals), in Revision Application No.178 of 2013, is of no consequence and therefore, this petition is required to be Page 8 of 12 Downloaded on : Fri Feb 12 16:05:55 IST 2021 C/SCA/7110/2017 ORDER dismissed.

6. The learned Assistant Government Pleader Mr.Antani submitted that there are three proceedings, which were in existence at the relevant time namely, one arising from Section 84C of the Act, 1948, the second is with regard to the entry proceedings and the third is with regard to Special Civil Suit No.40 of 2012 filed by the respondent nos.7 and 8 as mentioned in the impugned order passed by the Special Secretary, Revenue Department (Appeals). He therefore submitted that ultimately, the entries will have to be subject to the outcome of the Suits filed by the parties in the Civil Court.

7. Having heard learned advocates for the respective parties and having gone through the materials on record, it appears that there were two parallel proceedings going on, one with regard to the entry no.1468 mutated on 31.03.2004 on the basis of the sale deed executed in favour of the petitioner, and another proceeding arising out of entry no.1648, passed in favour of the respondent Nos.6 to 8 on the basis of the Will of the original owner.

8. In both the proceedings, the matter was remanded back, in the proceedings arising out of Page 9 of 12 Downloaded on : Fri Feb 12 16:05:55 IST 2021 C/SCA/7110/2017 ORDER the entry no.1468 in favour of the petitioner, the Secretary Revenue Department (Appeals) by order dated 30.08.2013 remanded the matter back to the Mamlatdar to pass a fresh order whereas, the proceedings arising out of the entry no.1648, the Collector by order dated 29.08.2013 directed the Mamlatdar to initiate the proceedings under Section 84C of the Act, 1948 and remanded the matter back. The Mamlatdar, confirmed the entry no.1468 and dropped the proceedings under Section 84C of the Act, 1948 and thereafter, it appears that the Appeal No.9 of 2014 was preferred before the Deputy Collector. The Deputy Collector ordered to certify the entry no.1468 dated 31.03.2004 and cancelled the entry no.1648 and entry no.1684 subject to outcome of the Civil Proceedings which were pending at the relevant time.

9. It appears that the petitioner challenged the order dated 29.08.2013 of the Collector before the Secretary, Revenue Department (Appeals) by preferring the Revision Application No.178 of 2013 and the respondent Nos.7 and 8, challenged the order passed by the Deputy Collector dated 31.03.2015 by preferring the Revision Application No.54 of 2015, before the Gujarat Revenue Tribunal.

Page 10 of 12 Downloaded on : Fri Feb 12 16:05:55 IST 2021 C/SCA/7110/2017 ORDER

10. The Secretary, Revenue Department (Appeals), dismissed the Revision Application No.178 of 2013 filed by the petitioner challenging the order dated 29.08.2013 passed by the Collector holding that the petitioner can make submissions before the Gujarat Revenue Tribunal and therefore no interference was made in the order passed by the Collector on 29.08.2013. The Special Secretary passed an order on 06.04.2016, which is the subject matter of challenge in this petition. The Gujarat Revenue Tribunal by order dated 29.10.2016 rejected the Revision Application filed by the respondent Nos.7 and 8 confirming the order dated 31.03.2015 passed by the Deputy Collector in Tenancy Appeal No.9 of 2014.

11. Learned advocate Mr.Gohil, at this juncture, submitted that the Review Petition is pending before the Gujarat Revenue Tribunal against the order dated 29.10.2016.

12. Be that as it may, from the facts on record, it is not in dispute that the order dated 29.08.2013 passed by the Collector is already implemented. The Mamlatdar, Kamrej in remand proceedings passed the order dated 14.02.2014 withdrawing the notice, issued under Section 84C of the Act, 1948 on the ground that the petitioner was owner of the land in question.

Page 11 of 12 Downloaded on : Fri Feb 12 16:05:55 IST 2021 C/SCA/7110/2017 ORDER

13. The order dated 14.02.2014 passed by the Mamlatdar is confirmed by the Deputy Collector as well as the Gujarat Revenue Tribunal. In such circumstances, the challenge made by the petitioner against the order dated 29.08.2013, before the Secretary, Revenue Department (Appeals), and confirmation of the order dated 29.08.2013 by the Secretary, Revenue Department (Appeals), have become infructuous and therefore, the order passed by the Secretary, Revenue Department (Appeals), dated 06.04.2016, confirming the order dated 29.08.2013, is of no consequence.

In view of the above facts situation, the present petition is disposed of. Notice is discharged.

(BHARGAV D. KARIA, J) PALAK Page 12 of 12 Downloaded on : Fri Feb 12 16:05:55 IST 2021

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