Gujarat High Court
Dashrath Farms Pvt. Ltd vs State Of Gujarat on 5 June, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7081 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7082 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7083 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7084 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7085 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7087 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7086 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7089 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7088 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 7090 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9800 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9830 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9831 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10722 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10724 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 11082 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10720 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4172 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 11136 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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NEUTRAL CITATION
C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
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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DASHRATH FARMS PVT. LTD.
Versus
STATE OF GUJARAT
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Appearance:
MR MIHIR JOSHI SR ADVOCATE with
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,3,4,5,6,7,8,9
for the Respondent(s) No. 2,3
MS MANISHA LAVKUMAR SHAH GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 05/06/2023
CAV JUDGMENT
With the consent of the learned counsels appearing for the respective parties, the matters are taken up for final hearing. Hence, Rule. Learned Government Pleader waives service of notice of Rule on behalf of respondent State.
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1. These groups of petitions were heard together and were reserved for orders / judgment vide order dated 08.02.2022. Considering the fact that the prayers made in each of the petition and facts of each petition were almost identical, all these matters were heard together and in view of that Special Civil Application No.7081 of 2021 was treated as main matter as the arguments were made by learned counsels of respective petitions on the basis of facts stated in Special Civil Application No.7081 of 2021 and even the State Government has also filed its exhaustive reply in the said matter, Special Civil Application No.7081 of 2021 was treated as main matter for deciding this group of petitions and accordingly prayers and facts are taken from Special Civil Application No.7081 of 2021.
2. In Special Civil Application No.7081 of 2021 the petitioners have prayed for following reliefs:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus and / or any other appropriate writ, order or direction quashing and setting aside the order dated 14.12.2020 passed by the learned Mamlatdar and ALT, Sanand in Page 3 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined Ganot Case No.65 of 2020 and be further be pleased to hold and declare that the proceedings initiated by the Mamlatdar And A.L.T. under section 63-AB and 63-AD simultaneously are without jurisdiction and the proceedings are under Violation of Article 14 of the Constitution of India.
(B) Your Lordship's may further be pleased to hold and declare that the present proceedings initiated by the Ld. Mamlatdar And A.L.T. is without authority of law in absence of any provision incorporated in the Tenancy Act enabling / entitling / authorizing the authority to examine as to whether a person "was" an agriculturist or not more particularly when the occupant has seized to be in ownership and possession of the subject land;
(C) Your Lordship's may further be pleased to hold and declare that the present proceedings vesting the land in state govt. in absence of any provision enabling the authority acting under tenancy act more particularly under the circumstances where the last purchaser / occupant of the land is admittedly and undisputedly an agriculturist; and be further pleased to hold and declare that the proceedings are vitiated also on the ground of delay and latches;
(D) Pending hearing and Final Disposal of this Special Civil Application Your Lordships may be pleased to stay the implementation, operation Page 4 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined and execution of the order dated 14.12.2020 passed by the learned Mamlatdar and ALT, Sanand in Ganot Case No.65 of 2020 and further be pleased to direct the respondent authority to maintain the status quo over the land in question;
(E) Any other and further relief that may deem fit by this Hon'ble Court in the interest of justice;"
3. The brief facts, as stated in the petition being Special Civil Application No.7081 of 2021, are as under:
3.1 The petitioner nos.1 to 19 were desirous to undertake agricultural activity and, therefore, they preferred an application for grant of permission under Section 63 of Gujarat Tenancy and Agricultural Lands Act, 1948 ['the Tenancy Act', for short] read with 36(1)(f) of the Tenancy Rules. The said permission was granted vide orders dated 17.01.1995 and 06.02.1995 by the competent authority and thereafter petitioner nos.1 to 19 purchased the land bearing Survey Nos.322/1, 322/2, 322/3, 339/1, 339/2, 315/1 and 364 + 365 / 1+2+3 situated at Village Thaltej, Tal.Daskroi, Page 5 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined Dist.Ahmedabad from erstwhile owner of the land by way of registered sale-deed pursuant to which Entry No.7523, 7524 and 7549 came to be mutated in the revenue record which was certified after following due process.
3.2 Thereafter, as stated in the petition, the petitioner nos.1 to 19 continued to cultivate the land and acquired the status of 'agriculturist' as per Section 2(2) of the Tenancy Act. Thereafter petitioner nos.1 to 19 purchased agricultural land bearing survey no.365 / 1 admeasuring 0-77-90 Hec.Are.Gunthas situated at Village Vasna Iyava, Tal.Sanand, Dist.Ahmedabad from Respondent No.3 - Bharatsinh Pavansang by registered sale deed no.3364 dated 09.08.1995 for which mutation entry no.1945 was mutated on 11.10.1995 and the same was certified on 20.12.1995.
3.3 Thereafter the petitioner no.20 purchased the aforesaid land from petitioner nos.1 to 19 vide registered sale deed no.1262 executed on 15.02.2011.
However, the said sale-deed was released on Page 6 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined 09.02.2017 and was numbered as registered sale deed no.864 for which revenue entry no.4493 dated 13.02.2017 was mutated. As the aforesaid revenue entry was rejected, petitioner no.20 challenged the said action of Mamlatdar before the learned Deputy Collector by way of RTS Appeal No.104 of 2017 and in the said proceedings, learned Deputy Collector, vide order dated 31.03.2018, partly allowed the appeal and remanded back the matter to Mamlatdar to mutate new entry pursuant to the aforesaid sale deed. Thereafter Mamlatdar mutated revenue entry no.4743 on 12.06.2018, however, the same was once again rejected by the Mamlatdar vide order dated 05.09.2018 and hence petitioner no.20 once again challenged the same before the learned Deputy Collector vide RTS Appeal No.176 of 2018 which was rejected vide order dated 27.08.2019 by the learned Deputy Collector.
3.4 The aforesaid order was challenged before the Collector, Ahmedabad by way of Revision Application No.535 of 2019 and the same is pending for adjudication.
Page 7 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined 3.5 The petitioner no.20 is holding status of 'agriculturist' by virtue of entry no.707 dated 20.10.2008 mutated in revenue record of land bearing survey no.260 [old survey no.457/1] situated at Village:
Sayajinagar, Tal.Vijapur, Dist.Mehsana on account of succession / co-ownership of the land during the lifetime of his father. In the meantime, Mamlatdar, Vijapur issued certificate addressed to Mamlatdar, Sanand on 19.04.2017 indicating aforesaid aspect.
3.6 Thereafter Mamlatdar and ALT Sanand by invoking provisions of Section 84(C) of the Tenancy Act issued show cause notice dated 06.11.2020 to petitioner no.1 to 19 by registering Ganot Case No.65 of 2020 and called upon petitioner nos.1 to 19 to explain that they were having status of 'agriculturists' at the time of certification of mutation entry no.1945 dated 11.10.1995. In respect of other parcels of lands purchased by petitioner nos.1 to 19 for which other petitions of this group are preferred, some show cause notices were given to petitioner nos.1 to 19 and Ganot Case No.65 of 2020 to Ganot Case No.89 of 2020 were Page 8 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined registered and, therefore, petitioner nos. 1 to 19 preferred Special Civil Application No.15881 of 2020 before this Court and challenged one of those show cause notice issued in Ganot Case No.77 of 2020.
Ultimately, vide order dated 05.01.2021 passed in Special Civil Application No.15881 of 2020 interim relief was granted in favour of petitioner nos.1 to 19 by the coordinate Bench of this Court.
3.7 The respondent - State challenged the aforesaid order dated 05.01.2021 by filing Letters Patent Appeal No.45 of 2021, however, in the meantime, the Mamlatdar passed final order dated 14.12.2020 and, therefore, the Division Bench of this Court disposed of Letters Patent Appeal as well as Special Civil Application No.15881 of 2020 both observing that petition as well as appeal have become infructuous and the petitioners would be taking appropriate recourse to challenge the order of the Mamlatdar dated 14.12.2020.
3.8 It was the case of the petitioner that pursuant to Show Cause Notice dated 06.11.2020, the proceedings Page 9 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined of Ganot Case No.65 of 2020 were initiated. The first date of hearing of those proceeding was 04.12.2020. On that day, the petitioners prayed for time and thereafter the matter was adjourned on 07.12.2020. On that day also the petitioners requested for time, however, the request was rejected and thereafter on 14.12.2020 the impugned order was passed by Mamlatdar and ALT Sanand, Dist.Ahmedabad in Ganot Case No.65 of 2020 which is the subject matter of challenge before this Court by way of this petition.
3.9 The State has filed exhaustive reply through Mr.V.S.Zeed, Mamlatdar (ALT), Sanand and while defending the order dated 14.12.2020 passed in Ganot Case No.65 of 2020 took strong preliminary objections on the ground of availability of alternative remedy as according to reply filed by respondent State, Section 74 of the Tenancy Act provides for an appeal against the order of Mamlatdar and ALT before the Collector or Deputy Collector when the order has been passed by the Mamlatdar and ALT under section 84(C) of the Tenancy Act and even the order of Deputy Collector Page 10 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined can also be challenged before the Gujarat Revenue Tribunal under Section 76 of the Tenancy Act. In the reply, respondent State has even claimed that the jurisdiction of respondent authority can be determined by the appellate authority and therefore petitioner should be relegated to avail alternative remedy.
3.10 On merits, in the reply, it was submitted that in respect of Special Civil Application No.7081 of 2021 the dispute relates to land bearing survey no.365/1 admeasuring 7790 sq mtr of village Vasna Ivava, Tal.Sanand, Dist.Ahmedabad which was purchased by 52 corporate entities from one Bharatsinh Mansang - Respondent No.3 herein vide registered sale deed dated 09.08.1995 for which revenue entries were mutated and the entry was certified. On perusal of sale as per the reply it can be seen that the transaction was entered into between Respondent No.3 and 52 corporation entities of which 19 are the present petitioners before this Court being petitioner nos.1 to 19 and in respect of revenue entry no.1945 reflecting the transaction of sale deed no.9895 in the column of Page 11 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined remarks no evidence has been recorded in respect of status of agriculturists of petitioner nos.1 to 19.
3.11 Those 52 corporate entities transferred the land in question in favour of petitioner no.20 out of which 19 being petitioner nos.1 to 19 who are before this Court sold the land in question to petitioner no.20 in the year 2011 by registered sale deed dated 15.02.2011 which was released on 09.02.2017.
3.12 In the reply, respondent State has also stated about the fact that revenue entries certifying the transaction of selling the land to petitioner no.20 by way of registered sale deed were rejected and proceedings against those rejection orders were also held against the petitioners. Lastly order dated 27.08.2019 passed by the Deputy Collector, Sanand in RTS Appeal No.176 of 2018 was passed whereby also the order of rejection of mutation entry pursuant to the sale deed executed in favour of petitioner no.20 was confirmed and being aggrieved by the said order, the petitioner no.20 has preferred revision application before the District Collector, Ahmedabad which is Page 12 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined pending for adjudication and, therefore, till date the name of petitioner no.20 has not been mutated in the revenue record.
3.13 Thereafter the show cause notice dated 06.11.2020 was issued by the Mamlatdar, Sanand under Section 84(C), 63AB and 63AD of the Tenancy Act for land in question to respondent no.3 as well as to 52 corporate entities of which 19 petitioners are before this Court and ultimately impugned order dated 14.12.2020 was passed whereby the land in question was ordered to have been vested in the State Government free from all encumbrances.
3.14 In the affidavit-in-reply it is elaborately explained as to how the companies and other persons born out of law (non-natural persons) cannot be said to be agriculturists and thus cannot held agricultural land as per Section 63 of the Tenancy Act. In the reply it is also pointed out that Government published Government Resolution dated 23.11.1998 which clearly states that the company and all others persons born out of law (non-natural persons) are not agriculturists Page 13 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined and they cannot hold agricultural land as per Section 63 of the Tenancy Act. The validity of aforesaid Government Resolution was challenged by non-natural persons viz. Prathmesh Farms Limited i.e. petitioner no.4 in this petition by filing Special Civil Application No.1491 of 1999 where he succeeded, however, the State preferred Letters Patent Appeal No.932 of 2000 and the Division Bench of this Court vide order dated 31.08.2010 upheld the validity of Government Resolution dated 23.11.1998.
3.15 When the petitioner no.4 challenged the aforesaid order dated 31.08.2010 passed by the Division Bench of this Court in Letters Patent Appeal No.932 of 2000 before the Hon'ble Supreme Court by filing Special Leave Petition (Civil) No.31841 of 2010, the same was dismissed vide order dated 26.11.2010 and thus the validity of the Government Resolution dated 23.11.1998 is upheld by the Hon'ble Supreme Court.
3.16 The Government Resolution dated 23.11.1998 forms part of State policy as it stands today and as per Page 14 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined aforesaid policy companies and other persons born out of law (non-natural persons) cannot hold agricultural lands without permission from the competent authority and this stand was reiterated by the State Government through Circular dated 02.05.2011. Further, by way of affidavit-in-reply, the State has, by relying upon various definitions of 'agriculturist' has defined under Section 2(2), 'to cultivate' section 2(5), 'to cultivate personally' under Section 2(6) and 'person' under section 2(11), has tried to further explain that legal person or body corporate who, in nature of things, cannot personally cultivate the land as per the definition of 'person' and, therefore, they cannot hold agricultural land without permission of competent authority and, therefore, petitioner nos.1 to 19 could not have become agriculturists and more particularly when the petitioner no.4 himself was party to the litigation in respect of Government Resolution dated 23.11.1998, filing of such petition before this Court straightway, despite knowing the legal provisions, is unreasonable and is required to be viewed seriously.
Page 15 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined 3.17 In the affidavit-in-reply, the State has, by relying upon provisions of Section 63 of the Tenancy Act, canvassed that Section 63 of the Tenancy Act bars the transfer of agricultural land in favour of non- agriculturist and, therefore, petitioner nos.1 to 19 cannot be said to be agriculturist. In the affidavit-in- reply, it has been emphasised that when the petitioner nos.1 to 19 sought permission under Section 63 of the Tenancy Act and the same was granted, it was granted to the petitioners only in respect of following lands i.e. a. In respect of land bearing Survey No.315/2 on 17.01.1995;
b. In respect of Lands bearing Survey Nos.322/1, 322/2, 322/3, 339/1, 339/2 on 16.04.1994 and c. In respect of Land bearing Survey No.364+365/1+2+3 on 16.04.1994.
3.18 By referring to the aforesaid permission granted in respect of specific parcels of land it was pointed out by affidavit-in-reply that at no stage Page 16 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined permission under Section 63 of the Act has been obtained from the concerned authority for the land in question and, therefore, it cannot be said that the petitioners have acquired the status of 'agriculturists'. In the affidavit-in-reply by explaining elaborately provisions of Section 63 it was contended that the land could not have been transferred in favour of petitioner no.20 by regularising the sale in accordance with Section 63AB of the Tenancy Act as in the facts of the case provisions of Section 63AB would not be applicable as whether the petitioner no.20 is an 'agriculturist' or not is a matter of investigation and examination and though petitioner no.20 has produced certificate issued by Mamlatdar, Vijapur dated 19.04.2017, the veracity and validity of said document is not admitted by the deponent of the affidavit and, therefore, the status of the petitioner no.20 as an 'agriculturist' cannot be confirmed unless an inquiry in that regard is carried out. Further, in the affidavit, it is stated that even if the petitioner no.20 is found to be agriculturist then also Section 63AB of the Tenancy Act would not be applicable in view of the fact that Page 17 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined non-natural persons like petitioner nos.1 to 19 would not fall within the definition of 'person' under the Tenancy Act.
3.19 In the affidavit-in-reply, it is stated that as per Section 70 of the Tenancy Act, the duties of the Mamlatdar is defined, however, those duties are only for the purpose of this Act i.e. Tenancy Act and Section 70A provides for a duty of Mamlatdar to decide whether a person is an agriculturist or not whereas Section 70B casts the duty upon the Mamlatdar to decide whether a person is or was a tenant or protected tenant or permanent tenant or not. As the definition of a 'person' does not include non- natural persons, the Mamlatdar cannot decide as to whether non-natural person is an 'agriculturist' under the Tenancy Act or not and, therefore, Mamlatdar has acted beyond his powers under Section 70B of the Tenancy Act. In the reply, it is also stated that Mamlatdar's duty under Section 70A of the Tenancy Act to determine as to whether person is 'agriculturist' or not under the Tenancy Act whereas Mamlatdar and Page 18 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined ALT cannot determine the aforesaid aspect and therefore also the inquiry under Section 70B carried out by the then Mamlatdar was without jurisdiction.
3.20 By way of aforesaid reply, the State prayed for dismissal of petition on the ground of availability of alternative remedy as well as on merits.
4. Heard learned senior advocate Mr.Mihir Joshi with learned advocate Mr.Vimal Purohit for the petitioners.
4.1 Once the arguments were concluded as the matter was heard at length, learned counsels were directed to provide brief written submissions. Accordingly, learned advocate Mr.Purohit provided written submissions on behalf of petitioners. The written submissions provided by the counsel of petitioners are as under:
4.2 It is contended that the impugned order suffers from irregularities as under:
4.2.1 The order impugned is passed overreaching the process of this Hon'ble Court since though the Page 19 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined Mamlatdar was aware about the fact that the petition was pending, in utter haste, order came to be passed.
4.2.2 Though the last bona fide purchaser was necessary party, the same was not issued with the show cause notice but surprisingly his name cropped up in the order. The same amounts to violation of principles of natural justice.
4.2.3 No hearing was given to the affected parties.
4.2.4 Order passed in utter haste whereby proceedings initiated after 24 years and the order passed within 10 days without undergoing any procedure.
4.2.5 Belated exercise of powers i.e. after 24 years, not permissible.
4.3 On the aspect of maintainability of the petition on the ground of alternative remedy against the order passed by learned Mamlatdar and ALT, which is under challenge in this petition, the petitioner relies on the judgments in support of submissions that petition is Page 20 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined maintainable since the same satisfies and falls under the exceptions / category / principles carved out by the Hon'ble Apex Court and this Hon'ble Court. Those judgments are,-
4.3.1 1998 (8) SCC 1 in the case of Whirlpool Corporation vs. Registrar of Trade Mark wherein the Hon'ble Apex Court has held that in the given cases powers under writ jurisdiction can be exercised, there is efficacious alternative remedy provided by law.
4.3.2 2011 (3) GLR 2286 in the case of Paschim Gujarat Vij Company Limited vs. District Consumer Redressal Forum wherein it is held that in the given case powers under writ jurisdiction can be exercised, even there is efficacious alternative remedy provided by law and the litigant may not be relegated to avail alternative remedy.
4.3.3 in Civil Appeal No.5721 of 2021 in the case of Magadh Sugar & Engery Ltd. vs. State of Bihar wherein the Hon'ble Supreme Court has very recently held that in the given cases powers under writ Page 21 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined jurisdiction can be exercised, even there is efficacious alternative remedy provided by law.
4.3.4 2021 AIR (SC) 2114 in the case of M/s.
Radha Krishan Industries vs. State of Himachal Pradesh wherein the Hon'ble Supreme Court has held in the given cases powers under writ jurisdiction can be exercised, even there is efficacious alternative remedy provided by law.
4.3.5 In the decision of Ishwar Narayanbhai Patel vs. State of Gujarat rendered in Letters Patent Appeal No.1821 of 2019 wherein Hon'ble Division Bench place reliance in the case of M/s. Radha Krishan Industries vs. State of Himachal Pradesh reported in 2021 AIR (SC) 2114 has quashed and set aside the order of Ld.Single Judge holding that in case where the statutory authority has not acted in accordance with the provisions of the law or acted in defiance of fundamental principles of judicial procedure or where an order has been passed in violation of principle of natural justice, than in such circumstances, the writ court should not hesitate to entertain the writ petition, Page 22 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined despite the fact that alternative remedy is available in law.
4.4 Relying upon the aforementioned judgments, learned senior advocate Mr.Joshi submitted that there are broad propositions that in an appropriate case, inspite of availability of alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies i.e. i. Where the writ petition seeks enforcement of any of the fundamental rights;
ii. where there is failure of principles of natural justice;
iii. Where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged And the case of the petitioners falls under second and third category / principle.
4.5 Learned senior advocate harping on above two contingencies / categories / submitted that it is an Page 23 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined admitted and undisputed position on record that no reasonable / effective opportunity of hearing was given to the present petitioners. Moreover, admittedly even no notice was ever issued to the petitioner no.20 (present occupant / owner of the land in question). He submitted that it is noteworthy to mention that the notice was issued on 06.11.2020 to petitioner nos.1 to 19 wherein though it was submitted that they have challenged the notice before this Hon'ble Court and the copy of the petition also being supplied, the learned Mamlatdar on 14.12.2020 has passed the impugned order without giving reasonable opportunity of hearing. Therefore, there is clear violation of Article 14 of the Constitution of India. He relied upon the judgment reported in 1978 (2) SCR 621 in case of Menka Gandhi vs. Union of India wherein the Hon'ble Supreme Court has held that Article 14 of the Constitution of India guarantees the right of hearing to a person adversely affected.
4.6 Learned senior advocate Mr.Joshi submitted that as per celebrated principles mentioned Page 24 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined hereinabove, the present case is included in the case of 'violation of principles of natural justice'. It is also submitted that in respect of third contingencies/ principles / category according to which writ petition is maintainable against an orders or proceedings which are wholly without jurisdiction which includes order or proceedings wherein the authority has acted / exceeded the powers vested with the same by the statute, is without jurisdiction. It is submitted that the impugned notice culminated into the order is without jurisdiction on the ground that exercising of powers after unreasonable period i.e. in the instant case after 24 years is termed as without jurisdiction by catena of judgment of Hon'ble Supreme Court and Hon'ble High Court. In support of this submission, reliance is placed on judgment in case of Mohamad Kavi Mohamad Amin vs. Fatmabhai Ibrahim reported in (1997) 6 SCC 71 wherein the Hon'ble Supreme Court relied on the judgment reported in 1969 (2) SCC 187 in the case of State of Gujarat vs. Patil Raghav Natha wherein delay of one year was held to be fatal.
Page 25 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined 4.7 Learned senior advocate Mr.Joshi also relying upon the judgment of Hon'ble Supreme Court in the case of State of Punjab vs. Bhatinda District Co. Op. Milk Producer Union Ltd. reported in 2007 (11) SCC 363 pointing out that it is held in para:24 that question of limitation being a jurisdictional question, the writ petition was maintainable. In para:25 it is held that the revisional authority, being creature of the statute while exercising its revisional jurisdiction, would not be able to determine as to what would be the reasonable period for exercising the revisional jurisdiction and referring this judgment he submitted that as laid down by the Hon'ble Supreme Court that revisional authority would not adjudicate the aspect of reasonable time, the writ petition challenging the impugned show cause notice issued after 24 years is maintainable.
4.8 Relying upon the judgment of Hon'ble Supreme Court in the case of Jt. Collector Ranga Reddy District and another vs. D. Narsingh Rav and others reported in 2015 (3) SCC 695 he submitted that Page 26 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined exercising powers after delay would tantamount to fraud upon the statute. He also relied upon the judgment of this Court in case of Dalsukh Chaturbhai Prajapati vs. State of Gujarat reported in 2017 e GLR_HC 10006375 wherein it is held that if order is without jurisdiction then there will be no bar of alternative remedy.
4.9 It is contended by learned senior advocate Mr.Joshi that the order is also without jurisdiction since the same exceeds the show cause notice. To substantiate, the notice is issued invoking the amended provisions of sections 63(A)(B) and 63(A)(D) of the Tenancy Act but surprisingly the order is passed under Section 63(i)(a)(b)(c) read with Section 84(C) of the Tenancy Act and therefore the order is passed beyond the scope of the show cause notice and therefore it can be said to have been passed without jurisdiction.
4.10 It is also contended that there are no provisions under the Tenancy Act to initiate proceedings against the person who is admittedly an agriculturist. The petitioner no.20 who is holding the Page 27 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined land since 2011 by way of registered sale deed is undisputedly an agriculturist against whom there are no allegations. He submitted that Section 70(a) only empowers the learned Mamlatdar to examine the current status of a person whether he is an agriculturist or not but does not empower to examine the past status i.e. whether a person was an agriculturist or not. Hence, petitioner nos.1 to 19 not holding the land since 2011 and their status remained unchallenged till then, there an be no inquiry with respect to their status as an agriculturist in absence of any statutory powers empowering the Mamlatdar to do so. However, the legislature empowered the Mamlatdar to examine the current and past status of tenant as against the agriculturist.
4.11 It is submitted by learned senior advocate Mr.Joshi that the initiation of proceedings and order passed thereunder are without jurisdiction since the notice is issued under Section 63(A)(B) and 63(A)(D) and none of them applies to the facts of the present case. However, surprisingly having realised that notice Page 28 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined was wrongly issued, the same was illegally concluded holding under the provisions which were absent in the show cause notice. He, therefore, submitted that the order is without jurisdiction since ultimately though without any reference in the show cause notice the provisions of Section 84(C) of Tenancy Act are invoked which are penal proceedings and cannot stand alone since it can only be invoked for breach of any provision of Tenancy Act and therefore for breach of section 63(1)(a)(b)(c) of Tenancy Act are absent in the show cause notice the impugned order is passed without jurisdiction.
4.12 Lastly it is submitted that in the present case the proceedings are initiated after 24 years but concluded in 24 days in violation of principles of natural justice. To substantiate this argument, he submitted that the first date of hearing was scheduled on 20.11.2020 and order is passed on 14.12.2020 i.e. within a period of less than 30 days which clearly transpires motive of the authority and also transpires that issuance of show cause notice was empty formality Page 29 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined and was issued with predetermined mind.
4.13 By making aforesaid submissions, learned senior advocate Mr.Joshi prayed for quashing and setting aside the impugned order dated 14.12.2020 passed by the learned Mamlatdar and ALT, Sanand in Ganot Case No.65 of 2020.
5.1 The petition was vehemently opposed by learned Government Pleader Ms.Manisha Lavkumar Shah who took a strong preliminary objections and submitted that the alternative efficacious remedy is available to the petitioners and, therefore, in view of the fact that statutory remedy of preferring an appeal against the order passed by the Mamlatdar and ALT is available to the petitioners, the petitioners may be relegated to avail alternative remedy provided under the Act. She submitted that the entire case of the petitioners is based on the premise of fraud as the petitioner nos.1 to 19 are corporate entities and though they cannot be said to be agriculturist as defined under the Act, yet they purchased the agricultural land and, therefore, when the purchase of land in their favour at the Page 30 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined relevant point of time was based upon fraud committed by them, even the subsequent purchase also cannot be validated. She submitted that when the petitioners themselves have fraudulently purchased the land by playing fraud with the State Authorities, the petition with such background must not be entertained by this Court and the petitioners must be relegated to avail alternative remedy.
5.2 Learned Government Pleader Ms.Shah submitted that there the disputed question of facts involved in the matter and she also submitted that the Mamlatdar and ALT has passed the impugned order by taking into consideration the legal as well as the factual aspects and, therefore, when the petitioner is challenging aforesaid order dated 14.12.2020, only the Deputy Collector / Collector would be proper authority who can re-appreciate the factual aspects and pass appropriate order after examining the record. She submitted that more so considering the fact that present petitioner nos.1 to 19 were corporate entities and sale in favour of petitioner no.20 has not yet been Page 31 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined legally recognised as the dispute related to revenue entries in respect of petitioner no.20 is also pending before the revenue authorities, even the subsequent sale in favour of petitioner no.20 is also questionable and has been questioned, the present petition cannot be straightway entertained by this Court and the petitioners are required to be relegated to avail alternative remedy.
5.3 As far as submissions about violation of principles of natural justice is concerned, she submitted that petitioner nos.1 to 19 were very much before the Mamlatdar pursuant to issuance of notice and allegations against them were of serious in nature. The petitioner nos.1 to 19 when made an application for adjournment and when the application for adjournment was rejected they were very much aware about the fact that they were to argue the matter on merits. However, they did not make any attempt despite having knowledge about the fact that there application for adjournment was rejected and, therefore, they cannot take defense that principles of natural justice Page 32 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined were not complied with. They were duly served with the notice and upon service of notice they appeared before the Mamlatdar on 04.12.2020 and on that day matter was adjourned to 07.12.2020. On that day i.e. 07.12.2020, they on their own volition did not make any submission nor produce any documentary evidence and therefore the same cannot be construed as violation of principles of natural justice. As the opportunity was given to the petitioner nos.1 to 19 to put forward their case before the Mamlatdar and ALT by issuance of notice and once they appeared on 04.12.2020, upon their request, the matter was adjourned to 07.12.2020. If the petitioner nos.1 to 19 failed to file reply or produce document even on 07.12.2020 and once their request was for adjournment was turned down, it was their duty to make submissions or to produce the documents. However, deliberately the petitioner nos.1 to 19 chosen not to file any document or reply and, therefore, such inaction on the part of the petitioner nos.1 to 19 despite having knowledge about pendency of litigation as well as despite the fact that they appeared in the Page 33 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined matter cannot be said to be principles of violation of natural justice and, therefore, the petition may not be entertained straightway on the ground of violation of principles of natural justice.
5.4 Learned Government Pleader further submitted that even if the petitioners still want to contend that the impugned order suffers from vice of principles of natural justice the petitioner can always raise that contention before the appellate authority. Learned Government Pleader submitted that transfer of land in favour of petitioner no.20 is nothing but systematic design to defeat the bar of Section 84(C) of the Tenancy Act as well as Section 63 of the Tenancy Act and, therefore, considering their intention that the land was initially purchased by corporate entities which cannot be termed as 'person' as defined in the Act and as they cannot be said to be 'agriculturists', immediately after knowing that their challenge to Government Resolution dated 23.11.1998 just with a view to make out from that Government Resolution the land was transferred in the name of petitioner no.20 Page 34 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined only with a view to defeat object of the Act and, therefore, this Court may not entertain this petition on merits and may rather relegate the petitioners to avail alternative remedy of filing an appeal against the impugned order.
5.5 In support of these submissions, she relied upon following decisions of this Court as well as of the Hon'ble Supreme Court.
(i) In the case of Gonvindbhai Somabhai Nail & Ors. vs. State of Gujarat & ors reported in 1987 SCC Online Guj 18;
(ii) In the case of State of Maharashtra & Anr. vs. Rattanlal reported in (1993) 3 SCC 326;
(iii) In the case of State of Orissa & Ors. vs. Brundaban Sharma & Anr. reported in 1995 Supp (3) SCC 249;
(iv) In the case of A.V. Papayya Sastry & Ors. vs. Govt. of A.P. & Ors. reported in (2007) 4 SCC 221;
Page 35 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined
(v) In the case of Prestige Lights Ltd. vs. State Bank of India reported in (2007) 8 SCC 449;
(vi) In the case of Uma Small Scale Industrial Co- operative Society Ltd. vs. Collector, Surat & Ors. reported in 2000 SCC OnLine Guj 585;
(vii) In the case of Commissioner of Income Tax & Ors. vs. Chhabil Dass Agarwal reported in (2014) 1 SCC 603;
(iix) In the case of Mukesh Bhavarlal Bhadari & Anr. vs. UCO Bank & Anr. reported in 2016 SCC OnLine Guj 3884.
5.5.1 Relying upon the decision in the case of State of Maharashtra & Anr. vs. Rattanlal reported in (1993) 3 SCC 326, learned Government Pleader submitted that in case of fraud or suppression or omission of material facts by the land owner, the limitation of three years would start only from the date of discovery of such facts and hence by relying upon aforesaid judgments, she submitted that in the Page 36 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined instant case as the petitioner nos.1 to 19 were corporate entities and they too have played a fraud as though they were non-agriculturists and yet transferred agricultural land which amounts to fraud since the fraud was noticed within the period of limitation, the proceedings were initiated and, therefore, the same cannot be said to be after a delay of 24 years.
5.5.2 By relying upon decision in the case of State of Orissa & Ors. vs. Brundaban Sharma & Anr. Reported in 1995 Supp (3) SCC 249 also learned Government Pleader submitted that the order if passed by the authority in that case the same can be challenged even after considerable lapse of time as initially the order itself was obtained by misuse or abuse of power by the authority on the basis of fraud or suppression by the concerned applicant.
5.5.3 Learned Government Pleader by relying upon the decision reported in (2007) 4 SCC 221 in the case of A.V.Papayya Sastry & Ors. vs. Govt. of A.P. & Ors. submitted that the order obtained by fraud can be questioned by exercising suo motu powers at any point Page 37 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined of time and that exercise of powers within reasonable time would not be criteria when there are allegations of fraud.
5.5.4 By relying upon the judgment of this Court rendered in the case of Uma Small Scale Industrial Co- operative Society Ltd. vs. Collector, Surat & Ors. in Special Civil Application No.2230 of 1991 decided on 01.12.2000, learned Government Pleader submitted that when some favourable orders are obtained by resorting fraud or suppression, exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India would amount to perpetuating illegality committed by the party and, therefore, petition requires to be dismissed.
5.5.5 Learned Government Pleader thereafter relied upon the decision reported in (2014) 1 SCC 603 in case of Commissioner of Income Tax & Ors. vs. Chhabil Dass Agarwal and submitted that when statutory forum is created by law for redressal of grievance, writ petition should not be entertained ignoring said statutory dispensation and submitted that there are five Page 38 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined exceptions to that which are carved out by Hon'ble the Supreme Court which are;
(i) where remedy available under statute is not effective but only mere formality enumerated;
(ii) where statutory authority not acted in accordance with provisions of enactment in question, or
(iii) where statutory authority acted in defiance of fundamental principles of judicial procedure, or
(iv) where statutory authority resorted to invoke provisions which are repeated, or
(v) where statutory authority passed an order in total violation of principles of natural justice.
Learned Government Pleader submitted that as the case of the petitioner would not fall under any of the aforesaid exception, the present petition cannot be straightway entertained and the petitioners are required to be relegated to avail alternative remedy available to the petitioners.
5.5.6 By relying upon judgment of this Court in the case of Mukesh Bhavarlal Bhandari & Anr. vs. UCO Bank & Anr rendered in Special Civil Application Page 39 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined No.13529 of 2015 with Special Civil Application No.14480 of 2015 decided on 04.02.2016, learned Government Pleader submitted that in view of availability of alternative remedy which cannot be said to be non-efficacious or non-effective remedy, the petitioners are required to be relegated to avail statutory remedy and hence the present petition is required to be dismissed on account of preliminary objections as the remedy of appeal is provided in the statute itself and the appellate authority who is creature of statute would examine the matter by considering all the submissions which are canvassed before this Court as he is empowered to adjudicate the issue and the submissions that the petitioners have made application can be made before the statutory authority also in the statutory appeal and, therefore, at this stage this Court may not entertain matter on merits and prayed for dismissal of petition on the ground of alternative remedy itself.
5.6 Learned Government Pleader also pointed out that in all the judgments cited by learned senior advocate Page 40 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined Mr.Joshi of this Court as well as of Hon'ble Supreme Court as observed that in a given case the power under Article 226 of the Constitution of India can be exercised to bypass the statutory remedy and availability of alternative remedy is not a bar to entertain the writ petition but the same are required to be exercised only in a given case and not otherwise and in the instant case, as it is left to the discretion of the Court whether to entertain the petition despite availability of alternative remedy or not, considering the facts of the case as well as considering the fact that petitioner nos.1 to 19 have purchased the land on the basis of fraud as well as considering the fact that petitioner no.20 stays as an agriculturist is also under cloud, this Court may not exercise aforesaid discretion in favour of petitioners and dismiss the petition by asking the petitioners to avail alternative remedy available to the petitioner.
5.7 By making aforesaid submissions, learned Government Pleader prayed for dismissal of this petition.
Page 41 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined 6.1 I have heard learned counsels for the respective parties and perused the record. I deem it appropriate to first decide the aspect of availability of alternative remedy and whether the present petition is required to be entertained despite availability of alternative remedy or not and, therefore, I will first decide as to whether the petitioners have made out a case for entertaining this petition despite availability of alternative remedy. On perusal of record, I have found that the petitioner nos.1 to 19 were put to notice by way of notice dated 06.11.2020 in respect of order under challenge. Pursuant to notice, petitioner appeared before Mamlatdar on 04.12.2020 and requested for time. The Mamlatdar granted them time upto 07.12.2020. Even on 07.12.2020 the petitioners appeared before the Mamlatdar and ALT and requested for further time. However, the petitioners were not granted time and on 14.12.2020 the impugned order was passed. Now these facts are required to be considered in view of averments made in the petition.
6.2 In para:16 of the petition, the petitioners have Page 42 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined averred that they challenged the show cause notice issued in Ganot Case No.65 of 2020 to 89 of 2020 by preferring writ petition being Special Civil Application No.15881 of 2020 before this Court on 04.12.2020 and the matter was listed on 10.12.2020 and as the Hon'ble Court was not available on that day, matter was adjourned to 05.01.2021 which would show that the date on which the matter was listed for the first time i.e. 10.12.2020, the petitioners were very much aware about the fact that the request for adjournment made by the petitioner nos.1 to 19 on 07.12.2020 was rejected by Mamlatdar and ALT and, therefore, on 10.12.2020 the petitioners could have at least mentioned the matter before some other Court for urgent hearing or could have preferred Civil Application seeking relief restraining the respondents from passing any order during the pendency of the petition. However, from the averments made in para:16 in the memo of petition, it transpires that petitioner did nothing and simply allow to adjourn the matter on 05.01.2021 and on that day interim relief was granted in favour of petitioner nos.1 to 19 and when the Page 43 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined aforesaid order dated 05.01.2020 was challenged before the Division Bench of this Court by way of filing Letters Patent Appeal No.45 of 2021 while passing the order in Letters Patent Appeal on 12.01.2021, the Letters Patent Appeal was disposed of as having become infructuous in view of the fact that the order dated 14.12.2020 passed by the Mamlatdar and ALT was already dispatched and categorical statement was made by learned counsel appearing for the petitioner that the petition has become infructuous as original petitioners would be taking appropriate recourse to challenge the order of Mamlatdar dated 14.12.2020 in an appropriate proceeding as may be advised and accordingly the petition was disposed of as having become infructuous.
6.3 What is shocked and surprising to the Court is the fact that in the writ petition running into 415 pages, the petitioners have tried to project as if petitioners have taken care to produce each and every proceeding, the petitioners though have produced memo of Letters Patent Appeal No.45 of 2021 and order dated Page 44 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined 12.01.2021 passed in Civil Application for Stay No.1 of 2021 but have deliberately not produced impugned order passed in Letters Patent Appeal No.45 of 2021 on 12.01.2021. Further, in the memo of petition, at page:27 of the petition, the petitioner has stated that he sought permission to withdraw the petition in view of subsequent development which came to be granted by the Hon'ble Court vide order dated 12.01.2021 is also incorrect statement as this Court when found that petitioner has not annexed the order dated 12.01.2021 passed in Letters Patent Appeal No.45 of 2021 tried to get that order and found that the Letters Patent Appeal was disposed of as the same had become infructuous.
6.4 Aforesaid is just an instance which would show that the petitioners against whom an allegations are of suppression and fraud have not taken care to project correct facts before this Court as well while drafting the petition and deliberately the order dated 12.01.2021 passed in Letters Patent Appeal No.45 of 2021 has not been produced.
6.5 Considering this conduct of the petitioner as well Page 45 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined as considering the fact that this may not be the only instances whereby an attempt is made to suppress some orders or to project some incorrect facts made before this Court, the petitioners have tried to play victim card by projecting themselves as victim of non- compliance of principles of natural justice. However, this Court would not like to spend its time in examining the genuineness of the claim of the petitioner when the Court itself is found that the petitioners themselves have not produced order dated 12.01.2021 passed in Letters Patent Appeal No.45 of 2021 and have made incorrect statement on page:27 of the petition that the petitioners sought permission to withdraw the petition which was granted to them by this Court whereas actually it was Division Bench of this Court which disposed of as the Letters Patent Appeal as well as the petition as the same had become infructuous. There may be other such instances as well and, therefore, it wold be in the interest of justice if the appellant authority who is exclusively tasked with hearing appeal arising out of the order of Mamlatdar and ALT hears the grievance of the petitioners as the Page 46 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined appellate authority cannot only examine the minutest things but also can check correctness of facts also by examining the original record.
6.6 Further, as far as contention of learned senior advocate Mr.Joshi about availability of alternative remedy cannot be a bar to entertain writ petition is concerned, I have considered all the judgments cited by learned senior advocate Mr.Joshi as well as learned Government Pleader Ms.Shah and on perusal of those judgments, I found that it is left to the discretion of the Court whether to exercise discretion in favour of petitioner or not by taking into consideration the facts of the case. In a given case, the Court can exercise powers in favour of petitioners and entertain the petition despite availability of alternative remedy but at the same time when the Court itself found that there are allegations against the petitioner nos.1 to 19 that they are corporate forum and cannot enjoy status of agriculturist and would not fall within the definition of 'person' as defined in the Act and that they have purchased the land by using fraudulent means and by Page 47 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined suppressing material facts, considering that aspect the aforesaid allegations though the allegations which has been treated as proved by the Mamlatdar and ALT, it would be in the interest of justice if such allegations are properly examined by the statutory authority before whom the appeal lies i.e. Deputy Collector or Collector.
6.7 Further, I have also considered the recent decisions of Hon'ble the Supreme Court whereby the aspect of availability of alternative remedy is considered.
6.8 This Court has also considered that the Hon'ble Supreme Court while considering the issue of availability of alternative remedy in case of The Assistant Commissioner of State Tax and other versus Commercial Steel Limited (Supra), in paragraph No.11 and 12 observed as under :-
"11 The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to Page 48 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is:
(i) a breach of fundamental rights;
(ii) a violation of the principles of natural justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the statute or delegated legislation.
12 In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent."
Page 49 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined 6.9 Similarly, the Hon'ble Supreme Court in case of Phoenix ARC Private Limtied (Supra) , in paragraph No.13 observed as under :-
"13. Now, so far as the submission on behalf of the borrowers that in exercise of the powers under Article 226 of the Constitution, this Court may not interfere with the interim / interlocutory orders is concerned, the decision of this Court in the case of Mathew K.C. (supra) is required to be referred to.
13.1 In the case of Mathew K.C. (supra) after referring to and/or considering the decision of this Court in the case of Chhabil Dass Agarwal (supra), it was observed and held in paragraph 5 as under:-
"5. We have considered the submissions on behalf of the parties. Normally this Court in exercise of jurisdiction under Article 136 of the Constitution is loath to interfere with an interim order passed in a pending proceeding before the High Court, except in special circumstances, to prevent manifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts Page 50 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT v. Chhabil Dass Agarwal [CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603], as follows: (SCC p. 611, para 15) "15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [Thansingh Nathmal v. Supt. of Taxes, AIR 1964 SC 1419] , Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still Page 51 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."
13.2 Applying the law laid down by this Court in the case of Mathew K.C. (supra) to the facts on hand, we are of the opinion that filing of the writ petitions by the borrowers before the High Court under Article 226 of the Constitution of India is an abuse of process of the Court. The writ petitions have been filed against the proposed action to be taken under Section 13(4). As observed hereinabove, even assuming that the communication dated 13.08.2015 was a notice under Section 13(4), in that case also, in view of the statutory, efficacious remedy available by way of appeal under Section 17 of the SARFAESI Act, the High Court ought not to have entertained the writ petitions. Even the impugned orders passed by the High Court directing to maintain the status quo with respect to the possession of the secured properties on payment of Rs.1 crore only (in all Rs.3 crores) is absolutely unjustifiable. The dues are to the extent of approximately Rs.117 crores. The ad-interim relief has been continued since 2015 and the secured creditor is deprived of proceeding further with the action under Page 52 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined the SARFAESI Act. Filing of the writ petition by the borrowers before the High Court is nothing but an abuse of process of Court. It appears that the High Court has initially granted an ex-parte ad-interim order mechanically and without assigning any reasons. The High Court ought to have appreciated that by passing such an interim order, the rights of the secured creditor to recover the amount due and payable have been seriously prejudiced. The secured creditor and/or its assignor have a right to recover the amount due and payable to it from the borrowers. The stay granted by the High Court would have serious adverse impact on the financial health of the secured creditor/assignor. Therefore, the High Court should have been extremely careful and circumspect in exercising its discretion while granting stay in such matters. In these circumstances, the proceedings before the High Court deserve to be dismissed."
6.10 In view of above discussion, ultimately, when there are serious allegations of fraud against the petitioners, the Court instead of going into technicalities like delay, in exercise of powers etc. or baseless allegations of violation of principles of natural justice, the Court must relegate the petitioners to avail Page 53 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined alternative remedy. This Court is of the view that the petitioners have failed to avail opportunity to file reply pursuant to the show cause notice issued by the Mamlatdar and ALT or to place on record documentary evidence indicating that they were agriculturist at the relevant point of time when the land was purchased by them. The petitioners' failure to file reply or produce documentary evidence before the Mamlatdar and ALT cannot be termed as violation of principles of natural justice and, therefore, petition cannot be entertained straightway when the petitioners have failed to make out a case of violation of principles of natural justice.
6.11 Further, the litigations are pending against petitioner no.20. The petitioner no.20 also has not become absolute owner of the land as there are proceedings against him which are still pending and his status as 'agriculturist' is also being examined and, therefore, today there is no question even to entertain this petition by taking into consideration the fact that the petitioner no.20 was not before the Mamlatdar and ALT. In fact the interest of justice would be served if Page 54 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined in the appeal, the appellate authority is directed to hear the petitioner no.20 as well so that in future he may not have any grievance that he was not heard. Further, in the impugned order itself the name of the petitioner no.20 also there as one of the parties. In absence of there being any specific averment as to whether he was served or not and whether he was heard or not, it would not be possible for this Court to presume either way as to whether the petitioner was heard or that despite service of notice petitioner no.20 did not appear and therefore also the matter is required to be dismissed by directing the petitioners to avail alternative remedy.
6.12 This Court has also considered the fact that there is an aspect of fraud involved in this matter and when such aspect is canvassed by State, considering the seriousness of allegations as well as considering the object of Act, such allegations are required to be examined thoroughly and, therefore, such allegations can be examined thoroughly only if the parties are directed to avail exhaustive alternative remedy Page 55 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023 NEUTRAL CITATION C/SCA/7081/2021 CAV JUDGMENT DATED: 05/06/2023 undefined available to them and, therefore, present group of petition is required to be dismissed with liberty to the petitioners to file appropriate appeal against each of the order which are impugned in each of the petition before appropriate Statutory Authority prescribed under the Act and if such appeals are preferred, the authority is directed to consider the same without being influenced by any of the observation made by this Court in this judgment.
6.13 With aforesaid observations and directions, petitions are dismissed. Rule, in each of petition, is discharged. No order as to costs. Interim relief, if operating in any of the petition, shall stand vacated forthwith.
7. It is clarified that this Court has not gone into merits of the matter and the authority is directed to consider the appeal preferred by the petitioners on its own merits and on the basis of material available on record.
(NIRZAR S. DESAI,J) MISHRA AMIT V. Page 56 of 56 Downloaded on : Sat Sep 16 19:57:10 IST 2023