Gujarat High Court
For Approval And Signature vs Dhanraj Ganeshmal Shah Through P.O.A. ... on 6 April, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/5905/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5905 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed Yes
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 No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
HEIRS & LRS. OF ANNARAJ GANESHMAL SHAH....Petitioner(s)
Versus
DHANRAJ GANESHMAL SHAH THROUGH P.O.A. HOLDER &
1....Respondent(s)
Appearance:
MR DN PANDYA, ADVOCATE for the Petitioner(s) No. 1 - 1.2
MR RAKESH PATEL, AGP for the Respondent(s) No. 2 - 2.3
MR KASHYAP R JOSHI, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2.2 - 2.3
RULE SERVED for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 06/04/2017
ORAL JUDGMENT
1. Heard Mr. Pandya, learned advocate for the Page 1 HC-NIC Page 1 of 19 Created On Tue Aug 15 17:51:53 IST 2017 C/SCA/5905/2008 JUDGMENT petitioner, Mr. Joshi, learned advocate for the respondent No. 1 and Mr. Patel, learned AGP for the respondent No. 2.
2. In present petition the petitioner has prayed, inter alia, that:-
"7(a) Admit and allow this petition; and
(b) Issue a writ of mandamus and / or certiorari and/or any other writ, direction and order, quashing and setting aside the impugned order Annexure:A passed by respondent no. 2, and thereby direct that the certification of entry on the Record of Right is always subject the pending Civil Suit in the original jurisdiction; and
(c) Stay the execution and operation of the impugned order pending admission, hearing and disposal of this petition; and
(d) Grant ex-parte ad-interim relief in terms of prayer (c) above; and
(e) Grant any other and / or further relief/s that may deem just and proper in the facts and circumstances of the petition."
3. So as to support and justify the relief prayed for in the petition the petitioner has averred and stated that:-
2. That in the facts and circumstances of the petition the pedigree of the family of the petitioners and respondent No. 1 is relevant, which is a follows:
Jashraj Shah Ganeshmal Jashraj Gulabchand(?) Shah
1. Anaraj Ganeshmal Shah (since deceased 1. Hastimal Gulabchand Shah through the petitioners) (1) Umraoben (widow:P/1) (2) Hitendra (son: P/2)
2. Dhanraj Ganeshmal Shah 2. Sukhraj Gulabchand Shah
3. Vanraj G. Shah 3. Chhaganlal G. Shah
4. Sampatraj G. Shah 4. Nemichand G. Shah
5. Virchand G. Shah 5. Magiben Gulabchand Shah
6. Laxmichand G. Shah
7. Kamalaben d/o Ganeshmal Shah
8. Vidyaben d/o Ganeshmal Shah
9. Jhankariben d/o Ganeshmal Shah
10. Indiraben d/o Ganeshmal Shah
11. Bhagyavantiben d/o Ganeshmal Shah
12. Ratanben d/o Ganeshmal Shah Page 2 HC-NIC Page 2 of 19 Created On Tue Aug 15 17:51:53 IST 2017 C/SCA/5905/2008 JUDGMENT
13. Bhartiben d/o Ganeshmal Shah (since deceased through her heir:) That hailing from Rajasthan, the ancestor Ganeshmal Jashraj and Hastimal Gulabchand Shah arrived long ago to Netrang in Valia Taluka of Bharuch District, and other of the ancestral joint family properties happened to purchase a number properties in Gundia near Netrang, and as suggested through family settlement and partition various properties devolved upon Ganeshmal. That the heirs of Ganeshmal Jashraj Shah through the first wife is (1) Anaraj happened to file a suit bearing No. Regular Civil Suit No. 10 of 2003 in the Court of the Civil Judge (J.D.), Valia, for partition of the suit properties of their ancestor Ganeshmal Jashraj Shah, which is pending adjudication against the children of 2nd wife through (2) to (13). That though entitled to a fair share in the immovable properties of the ancestors: Anaraj, the only son of the first wife, was totally left out of the properties unscrupulously. The concept of personal properties of the Ganeshmal Jashraj Shah is totally out place, in the facts and circumstances of the family since long with the father, the ancestor of these petitioner happened to devote his lifetime in running the family business and accumulating other properties in the young age of all the other family members. Those apart from the devolution of the properties of this petition by way of alleged family settlement with respondent no. 1, another heir no. 3, Vanraj Ganeshmal, also happened to grab certain other properties, and before the very same authority proceedings were pending being aggrieved by relevant orders passed by the respondent no. 2. That in the other proceedings pending civil suit and entry mutated on record of Rights has been cancelled by the respondent no. 2/1 upon principles, and without jurisdiction to proceeded with the application without joining heirs and legal representatives of the deceased applicant, ancestor of these petitioners, has been allowed against the deceased, aggrieved by which this petition is presented for protection of fundamental rights guaranteed under Article 14, 19 and 21 read with Articles 226 & 227 of the Constitution on the following amongst other grounds:-
(A) That the impugned order passed by respondent no. 2/1 is illegal, unjust, capricious and bad at law and is required to be quashed and set aside and reversed cancelling the revenue entry no. 677 posted on Record of Rights, pending adjudication of the civil suit for partition, in the facts and circumstances of the case.
(B) That the impugned order passed by the respondent no. 2/1 is mainly on the grounds of presumptions and surmises not tenable at law. (C) That the lower authority ought to have appreciated that the revenue entry is of presumptive value before a Court of Law and adjudication for the right to property is pending before a Civil Court in the facts and circumstances of the case and the certification is always subject to the result of the suit.
(D) That the lower authority ought to have appreciated that even the father of the respondent no. 1 had no authority to dispose the impugned properties in dispute, by a writing Annexure:E, as if it was of individual ownership, against the express provisions of law and statutes. (E) That the principles of law and statutes are applicable universally and while adjudicating upon the very same issue, the respondent no. 2 has directed to await result of the Civil Suit with respected one Vanraj who is also a co sharer in the impugned properties, and could not have taken a different view in the facts and circumstances of this petition.
Page 3 HC-NIC Page 3 of 19 Created On Tue Aug 15 17:51:53 IST 2017 C/SCA/5905/2008 JUDGMENT (F) that even otherwise also the impugned order is illegal, unjust, capricious and bad at law and is required to be quashed and set aside and reversed."
4. The respondent No. 1 has opposed the petition. In his reply affidavit dated 29.7.2008 the respondent No. 1 has averred and stated that:-
"5. First of all, the present petition is not maintainable under Article 226 and 227 of the Constitution of India, as there is neither any violation of fundamental right nor any infringement of any constitutional right of the petitioners. Moreover, no provision of any law has been even flouted by Revenue Appellate Authority and so, on this ground, the petition is not tenable in eyes of law or in the context of facts.
6. Besides, no legal right of the petitioners is ever encroached by the respondent no. 1 and so, no case is made out to use th extra-ordinary supervisory powers of this Hon'ble Court, as there is no error apparent on the face of the record. Additionally, the Revenue Appellate Authority has rightly exercised its jurisdiction considering the facts and legal provisions. No error, thus, has been committed in the said respect too. Hence, there is no scope for interference by this Hon'ble Court and so, this petition must be dismissed in limine with heavy cost on the threshold of these proceedings, as this is nothing but abuse of process of law.
7. The petitioners, therefore, are not entitled to any relief as prayed for and I, on behalf of the respondent no. 1 also oppose the prayer of interim relief as prayed by the petitioners and also ex parte order of status quo including the main relief, as, in my humble opinion, same cannot be granted in the present proceedings, as it is detrimental to legal rights and interest of the respondent no. 1. The order or Joint Secretary in Appeal of confirming the order of the Collector, Bharuch in respect of revenue entry no. 677 is legal, valid, just and proper in all respect.
8. Besides, the facts narrated in the present petition cannot be considered under the scope of judicial review or powers of superintendent, as the same are required to be proved by leading the evidence in the suit, hence, they are not admitted and also not relevant for the construction of the present petition and so, the same are denied in toto.
9. In fact, the respondent No. 1 is the son of one Ganeshmal Jasaraj Shah and Annraj Ganeshmal Shah was his step-brother, who died during the proceedings before the lower authority and so, his legal heirs are joined as legal representatives, who are the present petitioners before this Hon'ble Court. By way of this petition, they have challenged the revenue entry no. 677 mutated in the revenue record on 17.12.1996.
10. The respondent no. 1's father was having some self acquired properties i.e. agricultural lands in the village -Gundia, Taluka-Valia and District- Bharuch. The father of the respondent no. 1 died on 18.1.2001 and by his Page 4 HC-NIC Page 4 of 19 Created On Tue Aug 15 17:51:53 IST 2017 C/SCA/5905/2008 JUDGMENT registered will he has bequeathed the said properties to the respondent and his other sons excluding Annaraj Ganeshmal. The aforesaid will had been registered on 21.8.1996.
11. In the meanwhile, by way of family partition dated 24-10-1996, the land in question has been given to the respondent no.1 and the entry to that effect has also been mutated in the revenue record on 17-12-1996, which was also certified in due course.
12. Shri Annaraj Ganeshmal, then, has filed the Appeal before the Deputy Collector, Ankleshwar at very belated stage i.e. almost in the year 2003. The Deputy Collector, Ankleshwar, after hearing the parties, surprisingly allowed the said Appeal by his order dated 30-8-2003 and set aside the said entry and ordered to do succession of all the legal heirs regarding the suit land and makes the entry afresh.
13. The present respondent no.1 has challenged the said order by way of filing the Appeal before the Collector, Bharuch and in that case his Appeal is allowed and the order passed by the Deputy Collector of cancelling the said entry is set aside and held that the revenue entry no.677 dated 17-12-1996 is proper and legal.
14. The present petitioners had, therefore, being dissatisfied by the said Order of the Collector; Bharuch preferred the revision petition against the said order before the Joint Secretary (Revenue).
15. The Joint: Secretary, after hearing of both the parties, has confirmed the order of the Collector on 17-8-2008. Meanwhile, the Regular Civil Suit No.10 of 2003 filed in the court of Junior Division, Valia for partition and possession of the suit property is going on.
16. In view of the above factual position, the impugned orders of Joint Secretary and Collector are within the scope of their jurisdiction, as they confined their finding relating to the said revenue entry and there is no perverseness in the said orders.
17. The appellate revenue authorities have not committed any jurisdictional error in the present case, as the said entry no.677 has been illegally cancelled after almost seven years without any justification or supporting evidence and the Deputy Collector had been clearly erred in doing so, hence, declaring the said entry proper and legal is within the domain of the Collector and to that extent the order is just and reasonable.
18. In fact, there was a considerable delay in Challenging the said entry and as such, no explanation has ever been given by the petitioners for filing the said appeal at a belated stage.
19. Entry no.677 is duly certified and after the death of Ganeshmal Shah, the registered will made by him also categorically suggests that Annaraj Ganeshmal is completely excluded from the self acquired properties of his father. Moreover, the partition deed came into force long back and petitioners were conscious about the fact that they had no right whatsoever in the said suit properties. All the same, they kept mum till the father died and even after the death of the father i.e. on 18-1-2001; Annaraj Ganeshmal filed an Appeal Case in the year 2003, which shows his mala fides to grab the said suit property by illegal means.
20. The order of Deputy Collector is nothing but an error apparent on the face of the record. The observations made by him are beyond the scope of his power and jurisdiction. Moreover, the Deputy Collector has not made any inquiry regarding the registered will and he mistakenly assumed that the suit properties are ancestral in nature. Collector, therefore, has rightly set Page 5 HC-NIC Page 5 of 19 Created On Tue Aug 15 17:51:53 IST 2017 C/SCA/5905/2008 JUDGMENT side the said Order of the Deputy Collector and the Appellate Revenue Authority has correctly confirmed the said order of the Collector, Bharuch."
5. Learned advocate for the petitioner submitted that the learned Tribunal has committed error in rejecting the revision application filed by the husband of the petitioner. He further submitted that the learned tribunal committed error in confirming the order dated 6.10.2004 passed by the Collector. Learned advocate for the petitioner submitted that the husband of the petitioner is son of the first wife of original owner whereas the respondent No. 1 is the son of second wife of the original owner and the dispute between the husband of the petitioner and the respondent No. 1 with regard to right in the property of the deceased father of respondent No. 1 and husband of the petitioner is pending before the Civil Court where the parties are contesting their rival claims and rights with reference to property in question. He also submitted that the parties are at dispute with reference to Will said to have been executed by the deceased original owner and the dispute with reference to Will is also pending before the learned Civil Court. He submitted that the learned Tribunal and the Collector have failed to appreciate the Page 6 HC-NIC Page 6 of 19 Created On Tue Aug 15 17:51:53 IST 2017 C/SCA/5905/2008 JUDGMENT facts of the case and have committed error in not interfering with the entry No. 677 and rejecting the revision application filed by the petitioner's husband only on the ground that appropriate direction and relief can be granted by the learned Civil Court. He submitted that the right of the petitioner is required to be protected.
6. Mr. Joshi, learned advocate for the respondent opposed the petition and submitted that the learned Tribunal has not committed any error in passing impugned order. He further submitted that the respondent no. 1 had filed petition being Special Civil Application No. 555 of 2008 which was disposed of by the Court in view of the fact that the authorities have clearly mentioned in the order that the entries in the revenue record would be subject to the final decision in the proceedings before the learned Civil Court. He submitted that in view of order passed by the Secretary with the said clarification / observation and also in view of the order passed in the cognate petition i.e. Special Civil Application No. 555 of 2008 this petition does not deserve to be entertained and Page 7 HC-NIC Page 7 of 19 Created On Tue Aug 15 17:51:53 IST 2017 C/SCA/5905/2008 JUDGMENT deserves to be disposed of with similar order as passed in Special Civil Application No. 555 of 2008.
6.1 Besides said submission learned advocate for the respondent No. 1 also submitted that even otherwise the proceedings instituted by present petitioner are not maintainable in view of the fact that the petitioner approached concerned authority by way of appeal / revision against entry after 7 years and that therefore the proceedings instituted by the petitioner after such abnormal and inordinate delay could not have been entertained by the Mamlatdar. He submitted that the petitioner did not even prefer application for condonation of delay and in absence of request to condone delay the authority could not have entertained the application / appeal filed by present petitioner. To support his submission learned advocate for the respondent No. 1 relied on the decision in case between Dudhiben Muljibhai Patel vs. State of Gujarat 2016 (2) GLR 1786.
7. I have heard learned advocates for the petitioner and Page 8 HC-NIC Page 8 of 19 Created On Tue Aug 15 17:51:53 IST 2017 C/SCA/5905/2008 JUDGMENT the respondent as well as learned AGP. I have considered the material available on record and the impugned orders.
8. Before proceeding further it is relevant to note and mention at the outset that after hearing the petitioner and after considering the petition this Court passed below quoted order on 8.4.2008:-
Notice returnable on 29.4.2008.
In the meantime, status-quo, as of today, be maintained till the next date of hearing.
The learned counsel for the petitioners may serve the respondent No.1 by Speed Post at the cost of the petitioners.
8.1 Subsequently on 8.10.2008 the Court passed below quoted order:-
Heard learned advocate appearing for the parties. Rule. Mr. Vipul Mistry, learned AGP, waives service of rule on behalf of respondent-State.
Status-quo to the subject matter to be continued till further order. To be heard with Special Civil Application No. 555/2008."
8.2 From the above quoted order dated 8.10.2008 it comes out clearly that this Court, after examining the Special Civil Application No. 555 of 2008 as well as present petition, directed that both the petitions are to be heard and decided together. The petition being Special Civil Application No. 555 of 2008 was listed before this Court on 24.3.2017. After hearing learned advocate for the Page 9 HC-NIC Page 9 of 19 Created On Tue Aug 15 17:51:53 IST 2017 C/SCA/5905/2008 JUDGMENT petitioner this Court disposed of the said petition vide order dated 24.3.2017. However, since learned advocate for the petitioner was not available, present petition could not be decided on the same day and the proceedings of this petition came to be adjourned.
8.3 Having regard to the fact that the petitions are cognate and the parties in both the petitions are common and also having regard to the fact that learned advocate for the respondent No. 1 has referred to and relied on order dated 24.3.2007 in the Special Civil Application No. 555 of 2008, it would be appropriate to refer to the said order dated 24.3.2017 in Special Civil Application No. 555 of 2008. The said order reads thus:-
Heard Mr. Joshi, learned advocate for the petitioner, and Mr. Patel, learned AGP for the respondent State.
2. In present petition, the petitioner has prayed, inter alia, that:-
10(B) YOUR LORDSHIPS be pleased to allow this petition and quash and set aside the order passed by the Joint Secretary, Revenue, Ahmedabad and also of Collector in respect of block no.75, 236 and old survey no.112 of block no.96 of village Gundia, Taluka Valia, District Bharuch and also of Deputy Collector entirely and issue appropriate writ, order or direction and be pleased to direct the respondent no.1 to 3 to restore the entry No.706.
3. So far as factual background is concerned, the petitioner has averred and stated that:-
3.1 The petitioner is the son of one Ganeshmal Jasaraj Shah and the original respondent no.4 was his step-brother, who died during the proceedings before the lower authority and so, his legal heirs are joined as legal representatives.
3.2 The petitioner's father was having some self-acquired Page 10 HC-NIC Page 10 of 19 Created On Tue Aug 15 17:51:53 IST 2017 C/SCA/5905/2008 JUDGMENT properties i.e. agricultural lands in the village-Gundia, Taluka Valia and District Bharuch. These lands are consisting block nos.75, 96 and 236.
3.3 The father of the petitioner died on 18-1-2001 and by his registered will he has bequeathed the said properties to the petitioner and his other sons excluding the original respondent no.4 i.e. Anaraj Ganeshmal.
3.4 The aforesaid will had been registered on 21-8-1996. The original respondent no.4 was well aware about the said facts;
however, he had never taken any objection with regard to the revenue entry no.706 dated 02-8-1999, which was mutated by way of partition.
3.5 Even the said entry was also certified by Circle Officer, Valia subsequently on 28-9-1999.
3.6 The original respondent no.4, then, has filed the Appeal before the Deputy Collector, Ankleshwar at very belated stage i.e. in the year 2003. The Deputy Collector, Ankleshwar, after hearing the parties, surprisingly allowed the said Appeal by his order dated 30- 8-2003 and set aside the said entry and ordered to do succession of all the legal heirs regarding the suit land and makes the entry afresh. The certified copy of the said order is annexed at Annexure-C. 3.7 The present petitioner has challenged the said order by way of filing the Appeal before the Collector, Bharuch and in that case his Appeal is partly allowed and the order passed by the Deputy Collector is confirmed qua block no.75, 236 and old survey no.112 of block no.96. However, the order relating to old survey no.130 of block no.96 is set aside. The copy of the said order is annexed at Annexure-B. 3.8 The petitioner and the respondent no.4 both are dissatisfied with the said Order of the Collector and so, they have preferred the separate revision/review petition against the said order before the Joint Secretary (Revenue).
3.9 The Joint Secretary, after hearing of both the parties, has confirmed the order of the Collector. The certified copy of the said order is annexed at Annexure-A, which is received by the petitioner in September 2007.
3.10 Meanwhile, the original respondent no.4 has also filed a Regular Civil Suit No.10 of 2003 in the court of Junior Division, Valia for partition and possession of the suit property. The copy of the said suit is annexed at Annexure-D. 3.11 Besides, the copy of the registered will is also annexed at Annexure-E, by which the original respondent no.4 has been completely excluded by his father. Although, the said will has not been challenged as yet.
4. In the said factual background, the petitioner has placed under challenge the order dated 27.8.2007 passed by Joint Secretary (Appeals) i.e. present respondent No.1.
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5. By the impugned order, Joint Secretary (Appeals) has, while adjudicating the dispute with reference to entries mutated in revenue record, declared that the final decision in the suit pending between the parties will govern the entries and the entries which are mutated will be subject to final outcome in the suit, i.e. R.C.S.No.10 of 2003.
6. This petition was listed for final hearing and appropriate orders in yesterday's cause list, i.e. on 23.3.2017. Since, the learned advocate for the petitioner was not sure as to whether the suit is pending or not, hearing and order in the petition were deferred until today.
7. Today, Mr. Joshi, learned advocate, upon verification informed that the suit is still pending.
8. In this view of the matter, more particularly when the suit is pending between the parties and substantial dispute between the parties including the dispute with regard to right, title and claim of the parties as regards the land in question is to be decided by the learned Civil Court, there is no reason or justification to interfere with the final order dated 27.8.2007 passed by Joint Secretary (Appeals).
9. On examination of the order dated 27.8.2007 it comes out that the respondent No.1 Joint Secretary (Appeals) has not decided any dispute or claim or right between the parties on merits and he has refrained from passing any effective order on merits by merely stating that the entries mutated in the revenue record will be subject to final outcome in the suit. The said order is just and reasonable, more particularly in view of the fact that the suit between the parties is pending. Therefore, any interference with the order impugned in present petition is not warranted.
10. Therefore, present petition is disposed of with clarification that the dispute between the parties, more particularly the entries mutated in the revenue record, will be subject to final decision in the suit proceedings related to R.C.S.No.10 of 2003.
With aforesaid observation, present petition is disposed of. Rule is discharged. No order as to cost."
9. Having regard to the said order present petition deserves to be disposed of with similar observation and clarification.
9.1 However, since learned advocate for the petitioner preferred to assail the order passed by the Secretary the Court considers it appropriate to deal with the submission by the petitioner and the objection by the respondent.
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9.2 As mentioned above, from the submissions by
learned advocate for petitioner it has emerged that the petitioner and respondent No.1 are relatives. 9.3 It appears that the original owner i.e. father of the respondent No.1 and petitioner's husband had made Will. The said Will is subject matter of the dispute between the parties. The said dispute is pending before the learned Civil Court.
9.4 Therefore so far as right of the petitioner / husband of the petitioner is concerned the said right in the property covered by the Will would be decided by the learned Civil Court.
10. Under the circumstances as observed by the authorities the entries recorded in the revenue record of the village would be subject to final decision in the civil proceedings.
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10.1 The said observation, clarification and decision by the authority, does not warrant any interference.
11. However it is necessary to consider the objection raised by the learned advocate for the respondent No.1 against the proceedings wherein order came to be passed. 11.1 It appears that the disputed entry No. 677 came to be made on 7.12.1996 whereas the husband of present petitioner instituted proceedings for the first time in 2003 by way of Appeal Case No. 6 of 2003 before the Deputy Collector.
11.2 Thus, the proceedings came to be instituted by present petitioner's husband for the first time about 7 years after the entry was mutated / certified i.e. the application / appeal filed by the petitioner's father were filed beyond the period of prescribed limitation. 11.3 Under the circumstances, the authority could not have entertained the said application, more particularly because the petitioner's husband i.e. applicant Page 14 HC-NIC Page 14 of 19 Created On Tue Aug 15 17:51:53 IST 2017 C/SCA/5905/2008 JUDGMENT / appellant before the Deputy Collector (who filed application / appeal No. 6 of 2003) had not even cared to file any application seeking condonation of delay. 11.4 In absence of such application the authority cannot act suo motu and cannot, on its own motion, discretion and will, pass order ignoring the delay and/or condoning the delay. The authority also cannot proceed on assumption i.e. that the delay is deemd to have been condoned. The authority, in such case, must pass specific order condoning delay and for such decision the authority must be satisfied and should record reason in support and in justification for its decision. Further, such order cannot be passed unless the applicant/appellant offers sufficient explanation and makes out sufficient cause and requuests that delay may be condoned. It goes without saying that for such purpose the applicant/appellant must file appropriate application. In absence of application with proper explanation and request, the authority cannot act suo motu and cannot pass order on his own will, wish, motion and discretion.
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11.5 So far as present case is concerned, the authority
acted in absence of such application and without
recording satisfaction and reasons proceeded in the case on assumption that delay stands condoned.
11.6 In this view of the matter, the objection by the respondent no.1 must be accepted.
11.7 In response, Mr. Pandya, learned advocate for the petitioner submitted that the husband of the petitioner filed application / appeal no. 6 of 2003 when the husband came to know about entry and that therefore there was no delay in filing application. However, as mentioned above any application offering explanation and/or making out any ground was not filed before the authority. Under the circumstances, the objection raised by the respondent no. 1 against the proceedings instituted by the petitioner's husband cannot be brushed aside or rejected. The said objection is not without merits or substance.
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12. Besides this, the Secretary has, in the impugned order dated 17.8.2007, clarified that the dispute as to whether the property in question was purchased from the ancestral property and whether the property in question can be considered ancestral or not and how should said property be distributed amongst the contesting parties are the issues which can be determined by the learned Civil Court and the parties should seek appropriate orders from the learned Civil Court.
13. The said observation and clarification by the Secretary does not warrant any interference and for that reason also the petition does not deserve to be entertained.
14. Consequently, the petition is disposed of with following clarification / order:-
(a) On examination of the order it comes out that the Joint Secretary (Appeals) has not decided any dispute or claim or right between the parties on merits and he has Page 17 HC-NIC Page 17 of 19 Created On Tue Aug 15 17:51:53 IST 2017 C/SCA/5905/2008 JUDGMENT refrained from passing any effective order on merits and passed the order by merely stating that the entries mutated in the revenue record will be subject to final outcome in the suit.
(b) The said order is just and reasonable, more particularly in view of the fact that the suit between the parties is pending.
(c) Therefore, any interference with the order impugned in present petition is not warranted.
(d) Learned advocate for the petitioner submitted that the petitioner cannot dispute the fact that the Civil proceedings between the parties are pending and learned Civil Court alone can decide the dispute about right in property however, until the proceedings by learned Civil Court are decided the right of the petitioner may be protected.
In this context, it is appropriate to mention that if the petitioner apprehends any action by the respondent no. 1 Page 18 HC-NIC Page 18 of 19 Created On Tue Aug 15 17:51:53 IST 2017 C/SCA/5905/2008 JUDGMENT or by the respondent authority or for whatever reason the petitioner needs any interim order or any interim protection then the petitioner should approach the learned Civil Court with appropriate application / request were proceedings are pending.
(e) If the petitioner takes out such proceedings before the learned Civil Court, the learned Civil Court will consider the same in accordance with law after hearing interested and concerned parties and pass appropriate order. However, in view of the fact that substantive civil proceedings are pending before the Civil Court there is no need or justification to pass any order in present petition more particularly when the Court disposing of the petition with aforesaid clarification.
Consequently the petition is disposed of. Rule discharged. Ad-interim / interim relief if any, stands vacated forthwith.
Orders accordingly.
Sd/-
(K.M.THAKER, J.) Suresh* = Page 19 HC-NIC Page 19 of 19 Created On Tue Aug 15 17:51:53 IST 2017