Gujarat High Court
Koli Jivrajbhai Savabhai vs Special Secretary Revenue Department - ... on 28 April, 2023
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12384 of 2013
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 12384 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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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KOLI JIVRAJBHAI SAVABHAI & 2 other(s)
Versus
SPECIAL SECRETARY REVENUE DEPARTMENT - APPEALS & 5 other(s)
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Appearance:
MR HEMANT MAKWANA(3622) for the Petitioner(s) No.
1,2,3,3.1,3.2,3.3,3.4,3.5,3.6,3.7
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1,5,6
MR KIRIT R PATEL(2802) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 28/04/2023
ORAL JUDGMENT
Heard learned advocate Mr.Hemant Makwana for the petitioners, learned Assistant Page 1 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023 NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined Government Pleader Mr.Krutik Parikh for the respondent Nos.1,5 and 6 and learned advocate Mr.Kirit R. Patel for the respondent No.2.
1. Rule, returnable forthwith. Learned Assistant Government Pleader Mr.Krutik Parikh and learned advocate Mr.Kirit Patel waive service of notice of rule for the respective respondents.
2. By this petition under Article 227 of the Constitution of India, the petitioners have challenged the order dated 14th June, 2013 passed by the Special Secretary Revenue Department (Appeals) (for short 'the SSRD') whereby, the order dated 19.12.2009 passed by respondent-Collector, Surendranagar in Revision Case No.108 of 2009 came to be set aside.
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3. The brief facts of the case are as under :
3.1. The petitioner No.1 is the brother of the respondent No.2-Koli Amarabhai Savabhai whereas petitioner Nos.3/1 to 3/7 are legal heirs of late Jivabhai Savabhai who was brother of respondent No.2.
3.2. Respondent No.2-Koli Amrabhai Savabhai purchased the land situated at Survey No.56/1, 66/2, 68, 71/1 and 82 in public auction at village Rampara (Than) of Taluka-Chotila, District-Surendranagar admeasuring 183425 Sq.Mtrs on 04.04.1959 as a new tenure land. 3.3. Revenue Entry No.36 dated 28th February, 1960 was mutated in village Form No.6 and was certified on 11.06.1960. Page 3 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023
NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined 3.4. It appears that the petitioners have divided the said land among themselves on a family arrangement on 30th May, 1976 and Entry No.168 was mutated in revenue record which was certified on 02.07.1976.
3.5. As the land was a new tenure land, Case No.507 was instituted for breach of a condition as the partition of the land in question between the petitioners and the respondent No.2 was made without taking permission of the Collector. By order dated 05.11.1984, the Entry No.168 was cancelled and the land was restored in name of the respondent No.2 and entry to that effect being Entry No.184 dated 25.04.1985 was mutated in the Revenue Record.
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NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined 3.6. It appears that the Deputy Collector, vide order dated 24.12.2002 regularised the partition between the petitioners and respondent No.2 being the family arrangement in view of the Government Circular dated 30th October, 2002 which provides that if the new tenure land is partitioned between the family members having blood relation without taking permission of the Collector, then such partition would be valid partition with all the conditions attached to, when the land was granted.
3.7. Revenue Entry No.346 dated 29.05.2007 was mutated in the Revenue Record giving effect to the order dated 24.12.2002 passed by the Deputy Collector in the Case No.191 of 2002 which was certified by the Circle Officer on 23.08.2007.
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NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined 3.8. The respondent No.2, being aggrieved by the Entry No.346 preferred RRT Appeal No.91 of 2008 before the Deputy Collector who by order dated 07.05.2009 rejected the Appeal confirming the certification of the Entry No.346.
3.9. The respondent No.2 therefore preferred RRT Revision Case No.108 of 2009 before the Collector, Surendranagar who after taking into consideration the Government Resolution dated 30th October, 2002 confirmed the order passed by the Deputy Collector certifying the Entry No.346 based upon the order dated 24.12.2002.
3.10. The respondent No.2 thereafter challenged the order passed by the Collector before the SSRD by preferring Revision Page 6 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023 NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined Application No.65 of 2010. The SSRD by the impugned order dated 14th June, 2013 has allowed the Revision Application and therefore, being aggrieved the petitioners are before this Court.
4.1. Learned advocate Mr.Hemant Makwana for the petitioners submitted that the respondent No.2 has not challenged the order dated 24.12.2002 at any point of time and therefore, the restoration of the Entry No.168 whereby, the partition took place between the brothers of respondent No.2 has achieved finality and Entry No.346 is only passed giving effect to the order dated 24.12.2002.
4.2. It was pointed out by learned advocate Mr.Hemant Makwana that the SSRD has erroneously recorded the fact that the entire Page 7 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023 NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined proceedings has arisen because of the cancellation of the Entry No.346 by the Circle Officer. It was pointed out from the document on record which is produced at page No.31 that the Entry No.346 is certified by the Circle Officer on 23.08.2007 which is also recorded by the Deputy Collector and Collector in their respective orders.
4.3. It was therefore submitted that in view of the order dated 24.12.2002 the Entry No.184 whereby, the name of the respondent No.2 was restored would not survive and the names of the petitioners are rightly entered into the revenue record on the basis of the family partition which took place on 30th May, 1976 which is approved by order dated 24.12.2002 passed by the Deputy Collector. Page 8 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023
NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined 4.4. It was submitted that the impugned order passed by the SSRD is contrary to the facts and record and therefore the same is liable to be quashed and set aside. 5.1. On the other hand, learned advocate Mr.Kirit Patel for the respondent No.2 submitted that the respondent No.2 has purchased the land in question in an auction held in the year 1959 and thereafter without his consent, the petitioners have partitioned the land in the year 1976. It was submitted that the respondent No.2 has also filed a Criminal Complaint under Sections 463 to 471 of the Indian Penal Code read with Section 120 against the petitioners in the year 2013 which is pending before the competent Court. 5.2. It was further submitted that the Page 9 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023 NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined respondent No.2 has never given any consent and his thumb impression was never taken on the partition deed as well as in the reply to the notice under Section 135-D for the purpose of mutation of the Entry No.168 whereby, such partition has been recorded in the revenue records.
5.3. It was therefore submitted the impugned order passed by the SSRD is in confirmity with the facts which are emerging from the record.
5.4. In support of his submissions, learned advocate Mr.Kirit Patel has relied upon the following averments made by the respondent No.2 in the affidavit-in-reply as under :
"6. With regard to the contents of Paragraph No.7 of the petition, I deny the averments made therein. I deny that Page 10 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023 NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined the order dated 09.05.2013 is ex-facie bad in law and arbitrary inasmuch as the learned SSRD in jurisdiction under Section 108 has cancelled the entry, which recorded order of the revenue authority, more particularly the order is not challenged under Section 203 or 211 of the Gujarat Land Revenue Code.
7. With regard to the contents of Paragraph No.8 of the petition, I state that the same is formal in nature and hence, no comments are offered for the same.
8. Before dealing with the facts stated from Paragraph Nos.9.1 onwards of the petition, certain facts, which are relevant are disclosed hereinafter since the facts stated by the petitioners are distorted.
9. I state that with regard to the land in question situated at Village Rampara, to which proceedings were filed before the revenue authorities, the same are of the ownership and possession of the answering respondent and the present petitioners do not have any right, title or interest over the same. I further state that the petitioners herein, in absolutely illegal manner, did a distribution of the lands in question in a one-sided manner.
10. I state that the lands in question were given to me in santhani Page 11 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023 NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined and the necessary kabulat was also given by me, copy whereof is annexed hereto and marked as ANNEXURE-R1.
11. I state that earlier also there were proceedings with regard to breach of conditions, which arose out of Entry No.168 dated 30.05.1976, which also arose with regard to the so-called distribution of lands, for which Entry No.168 was mutated in the record of rights, which came to be rejected and vide order dated 05.11.1984 passed in Sharat Bhang Case NO.507 of 1984, it was ordered that the said entry is rejected. Annexed hereto and marked as ANNEXURE-R2 is a copy of the Entry No.168. Also, annexed hereto and marked as ANNEXURE-R3 is a copy of order dated 05.11.1984 passed in Sharat Bhang Case No.507 of 1984.
12. I state that another case for Breach of Condition No.191 of 2002 was suo motu initiated by the concerned authority, without there being any challenge to the earlier order passed in Sharat Bhang Case No.507 of 1984 and an order was passed regularizing the so-called family distribution and vide order dated 24.12.2002 was passed, which is clearly a null, void and non est order as once an entry regarding so-called partition between the family members was rejected, it was not open for the revenue authorities to again initiate suo motu proceedings after a gross delay and regularize the family Page 12 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023 NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined distribution.
13. I state that therefore we had challenged Entry No.346 before the concerned authorities and in the revision application filed before respondent No.1, it is clearly stated that we are also challenging the order passed in Sharat Bhang Case No.191 of 2002.
14. I state even with regard to the partition of the lands, I have also filed a criminal complaint dated 29.08.2013 before District Superintendent of Police, Surendranagar, copy whereof is annexed hereto and marked as ANNEXURE-R4. I state that there is a clear forgery committed by the petitioners and they have created false documents regarding the partition of the lands. I state that even such document is not a registered document and, therefor also, considering the provisions of the Registration Act, on the basis of such a document, which is in any case a forged document, the petitioners cannot get any right, title or interest over the lands in question."
5.5. Learned advocate Mr.Kirit Patel has also invited the attention of the Court to the additional affidavit-in-reply filed on behalf Page 13 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023 NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined of the respondent No.2 whereby further facts are brought on record that the order dated 04.11.1959 whereby the land in question was allotted to the respondent No.2 in a public auction on payment of the purchase price. Learned advocate Mr.Kirit Patel has also produced on record the finger print expert opinion along with another additional affidavit dated 27th January, 2016 to show that the thumb impression of the respondent No.2 is forged on the letter dated 30th May, 1976 for partition of the property produced by the petitioners is a sham and bogus document. 5.6. It was further submitted that as per the Government Resolution dated 22nd July, 1992, the respondent-Deputy Collector could not have taken the Entry No.168 into Suo-Moto Revision so as to give benefit of the Page 14 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023 NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined Government Circular dated 30th October, 2002 to the petitioners.
5.7. It was also pointed out by learned advocate Mr.Kirit Patel relying upon the orders passed by this Court on 30th January, 2018 directing the Collector to proceed with the pending Revision Application. It was submitted that by letter dated 13th April, 2018, the Collector has informed the Government Pleader of the High Court of Gujarat that in view of the disposal of the Revision Application No.65 of 2010 by the SSRD, the Collector Office is not required to take any further action. Learned advocate Mr.Kirit Patel has also relied upon the compromise arrived at between the respondent No.2 and the petitioner Nos.3.1 to 3.7. Page 15 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023
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6. Having heard the learned advocates for the respective parties and having gone through the materials on record, on perusal of impugned order passed by the SSRD whereby the order passed by the Collector is quashed and set aside, it appears that the SSRD has proceeded on the wrong premise that the Entry No.346 was not certified by the Circle Officer which is contrary to the record.
7. On perusal of the Entry No.346 appearing at page No.31 of the paper-book it is clear that the same was certified by the Circle Officer on 23.08.2007. The respondent No.2 has challenged the Entry No.346 before the Deputy Collector who rejected the Appeal filed by the respondent No.2 and similarly, the Collector has also rejected the Appeal of the respondent No.2 confirming the Entry No.346 which is passed on the basis of the order dated Page 16 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023 NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined 24.12.2002 passed by the Deputy Collector relying upon the Government Circular dated 30th October, 2002 whereby, the order passed in Case No.507 was recalled and the Entry No.168, whereby the family partition in name of the property in question amongst the petitioners and the respondent No.2 is mutated in the Revenue Record, is validated.
8. The grievances raised by the learned advocate Mr.Kirit Patel for the respondent No.2 with regard to the forged thumb impression upon the letter dated 30th May, 1976 is not the subject matter of the revenue proceedings. The impugned order passed by the SSRD only pertains to subject of the approval of the Entry No.346 passed on the basis of the order dated 24.12.2002 of the Deputy Collector. Therefore, if the respondent No.2 Page 17 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023 NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined has any grievance against the order which was passed by the Deputy Collector on 24.12.2002 or the partition which took place on 30th May, 1976, the respondent No.2 ought to have taken appropriate proceedings in accordance with law.
9. As the SSRD has passed the impugned order on the basis of not certifying the Entry No.346, the entire order is contrary to the facts and materials placed on record. In such circumstances, the impugned order is not sustainable and is accordingly, quashed and set aside and the order passed by the Collector in Revision Application No.108 of 2009 is restored whereby the order passed by the Deputy Collector is confirmed and the Entry No.346 which was passed on the basis of the order dated 24.12.2002 passed by the Page 18 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023 NEUTRAL CITATION C/SCA/12384/2013 JUDGMENT DATED: 28/04/2023 undefined Deputy Collector in the breach of condition Case No.191 of 2002 is given effect to.
10. The petition therefore succeeds and is accordingly allowed. Rule is made absolute to the aforesaid extent.
11. In view of the disposal of the Special Civil Application, the Civil Application would not survive and accordingly stands disposed of.
(BHARGAV D. KARIA, J) PALAK Page 19 of 19 Downloaded on : Sun Sep 17 18:57:06 IST 2023