Gujarat High Court
Jayantilal Jamnadas Thakkar vs & 5 on 21 March, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/14326/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14326 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy 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 ?
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JAYANTILAL JAMNADAS THAKKAR....Petitioner(s)
Versus
. & 5....Respondent(s)
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Appearance:
MR HRIDAY BUCH, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1.1
MR VISHRUT JANI, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1/1,
½, 2, 3, and 4
MR VIJAY H NANGESH, ADVOCATE for the Respondent(s) No. 5
NOTICE SERVED for the Respondent(s) No. 1.1 , 4 , 6
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 21/03/2017
ORAL JUDGMENT
1. Rule. Mr.Vishrut Jani, learned Assistant Page 1 of 16 HC-NIC Page 1 of 16 Created On Mon Aug 14 19:15:14 IST 2017 C/SCA/14326/2015 JUDGMENT Government Pleader, waives service of notice of Rule for respondents Nos.1/1, 1/2, 2, 3 and 4, and Mr.Vijay H. Nangesh, learned advocate, waives service of notice of Rule for respondent No.5. Respondent No.6 has been served but has not chosen to put in an appearance before the Court. Hence, as the said respondent does not appear to be interested, there is no requirement of the issuance of notice of Rule to her. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally, today.
2. This petition under Articles 226 and 227 of the Constitution of India, is directed against the order dated 07.07.2015, passed by respondent No.1/2, Special Secretary (Appeals), Revenue Department ("SSRD "), in Revision Application No.MVV/HKP/BNS/144/14, whereby the application for the grant of interim stay, pending the revision application filed by the petitioner, has been rejected.
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3. The brief facts of the case, relevant to the decision of the petition are that, one Bhikhabhai Pethabhai Harijan was the owner of the land bearing Survey No.103/1 Paiki2, situated at Village Kamodi, Taluka Deesa, District Banaskantha, admeasuring 0 Hectare, 25 Are and 28 Square Meters (the land in question). It is the case of the petitioner that the petitioner as well as respondent No.6 took care of the said Bhikhabhai Pethabhai Harijan during his last days, therefore, Bhikhabhai executed a Will dated 05.07.2005, bequeathing the land in question to the petitioner and to respondent No.6. The validity of the Will executed by Bhikhabhai has never been challenged by any person. After the death of Bhikhabhai on 29.12.2005, the names of the petitioner and respondent No.6 were mutated in the revenue record, vide Mutation Entry No.1395 dated 23.05.2006. This entry has been certified by the fourth respondent Circle Officer, on 01.11.2006. It is the case of the petitioner that ever since then, the petitioner and respondent No.6 are Page 3 of 16 HC-NIC Page 3 of 16 Created On Mon Aug 14 19:15:14 IST 2017 C/SCA/14326/2015 JUDGMENT jointly in possession of the land in question and are carrying on agricultural activities thereupon.
4. Due to certain disputes between the petitioner and respondent No.5, the latter tried to harass the petitioner. One instance of such harassment is stated to be that he preferred an appeal against the mutation entry in favour of the petitioner, before the Deputy Collector, after a delay of five years. Respondent No.5 was unsuccessful in the said appeal. After a period of about one and a half years from the rejection of the appeal, respondent No.5 preferred a revision application before the Collector who, by the order dated 20.09.2014, held that the present petitioner was not an agriculturist, therefore, he could not obtain such status by way of a Will. While allowing the revision application of respondent No.5, the Collector has also directed that proceedings be initiated under Section 84C of the Gujarat Tenancy and Agricultural Lands Act, 1948 ("the Tenancy Act"), against the petitioner.
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5. The petitioner has filed the abovementioned revision application against the aforesaid order of the Collector, before the SSRD, which is pending adjudication. Along with the revision application the petitioner filed an application for the grant of interim stay against the order of the Collector. This application has been rejected by the SSRD vide the impugned order dated 07.07.2015, giving rise to the filing of the present petition.
6. Mr.Hriday C. Buch, learned counsel for the petitioner, has submitted that initially, the Collector had fixed the revision application filed by respondent No.5 for hearing on the point of delay as well as the locus standi of respondent No.5, which objections had been raised by the petitioner. However, without adjudicating upon the above preliminary issues, the Collector thought it fit to pass the final order on the revision application itself. The petitioner, therefore, filed a revision application against the order of the Collector, inter alia, contending that no findings have Page 5 of 16 HC-NIC Page 5 of 16 Created On Mon Aug 14 19:15:14 IST 2017 C/SCA/14326/2015 JUDGMENT been recorded on the aspect of delay as well as the locus standi of respondent No.5, who is a stranger to the litigation.
7. It is further submitted that the Collector, by the impugned order, has directed that proceedings under Section 84C of the Tenancy Act be initiated against the petitioner. This order was required to be stayed by the SSRD as, if such proceedings are initiated, the revision application preferred by the petitioner would become infructuous. Instead of granting an interim stay, the SSRD has rejected the application of the petitioner on the ground that the petitioner is not an agriculturist and has not produced any material in support of such status.
8. It is submitted that no reasons have been recorded by the SSRD as to why there is no prima facie case against the petitioner. Learned counsel for the petitioner has further submitted that the issue regarding the conferment of agricultural status through a Will is pending Page 6 of 16 HC-NIC Page 6 of 16 Created On Mon Aug 14 19:15:14 IST 2017 C/SCA/14326/2015 JUDGMENT adjudication before the Supreme Court. Even before the Apex Court, an order of status quo has been passed in the case before it. Hence, the SSRD could have granted an interim stay in favour of the petitioner.
9. It is further pointed out that in another matter filed by a third party, the then SSRD has, by an order dated 07.11.2012 (AnnexureG to the petition), granted an order of status quo after considering the pendency of the proceedings before the Supreme Court. Hence, it was incumbent upon the SSRD to have granted interim relief in favour of the petitioner pending the revision application. Instead of doing so, the SSRD has rejected the application and directed that the revision application filed by the petitioner be heard in its turn. Considering the burden of pendency before the SSRD, it is unlikely that the revision would come up for hearing in the near future. When its turn does comes, it would have become infructuous as the Mamlatdar would have concluded the proceedings under Section 84C of the Tenancy Act.
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10. Learned counsel for the petitioner has placed reliance upon certain judgments of this Court on the point that the SSRD ought to have granted an interim stay during the pendency of the revision application. The judgments relied upon are as follows:
(i) Harilal M. Jasen v. K.C.Sagar and Ors.
Special Civil Application No.3770 of 1985, decided on 02.08.1985.
(ii) Nagji Uka v. Administrator of Sakedi Agri. Co.op. So. Ltd. & Ors. Special Civil Application No.1850 of 1976, decided on 15.12.1976.
11. Mr.Vijay H. Nangesh, learned advocate for respondent No.5, has submitted that the petitioner is not an agriculturist, therefore, the SSRD has rightly refused to grant a stay order in his favour. The order of the Collector is in accordance with law and the petitioner cannot be permitted to avail of the status of an agriculturist by way of a Will, as held by the Division Bench of this Court, which issue is pending adjudication before the Supreme Court.
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12. Mr.Vishrut Jani, learned Assistant Government Pleader has also taken the same stand as that taken by respondent No.5 and has submitted that the petitioner has not produced any material to prove that he is an agriculturist. Hence, the order of the Collector as well as the order of the SSRD, refusing to grant a stay order in his favour, are just and proper.
13. This Court has heard learned counsel for the respective parties, perused the averments made in the petition and the contents of the impugned order.
14. At the outset, it is required to be clarified that the scope and ambit of this petition is only confined to the context in which the impugned order has been passed, that is, the refusal of the SSRD to grant interim relief to the petitioner and the effect of such an order.
15. The aspect whether, or not, the petitioner is an agriculturist, is not a matter that can be decided in an application for the grant of interim stay. In any case, in the proceedings Page 9 of 16 HC-NIC Page 9 of 16 Created On Mon Aug 14 19:15:14 IST 2017 C/SCA/14326/2015 JUDGMENT before the Supreme Court, an order of status quo has been granted, which is evident from a copy of the order dated 31.01.2011 passed by the Apex Court in Special Leave to Appeal (Civil) No.2080/2011. Hence, if an order of status quo could have been granted by the Apex Court pending the final decision on the issue whether the status of an agriculturist can be conferred by a Will, or not, there is no reason why the SSRD could not have done so, especially as such an order has been passed in another matter.
16. In the order of the Collector that is under challenge before the SSRD in the revision application, a direction has been issued to the Circle Officer to initiate proceedings under Section 84C of the Tenancy Act. It is this direction that was required to be stayed by the SSRD as, during the pendency of the revision application, if no stay order is granted, the revision application would be rendered infructuous even before it is heard on merits. Such a situation cannot be permitted to occur as a litigant is entitled to a fair hearing on Page 10 of 16 HC-NIC Page 10 of 16 Created On Mon Aug 14 19:15:14 IST 2017 C/SCA/14326/2015 JUDGMENT merits of the revision application that may have been filed by him. The practice of refusing interim relief which amounts to rendering the main proceedings infructuous, is required to be discouraged. The validity of the case of the litigant can be examined at the stage of the final hearing of the revision application. Whether the litigant would succeed or not, is a matter that cannot be presumed at the interim stage. At the initial stage of consideration regarding interim relief, the authority concerned ought to take into consideration the factors regarding primafacie case, balance of convenience and also the irreparable loss that would occur if an interim order is not granted.
17. In Harilal M. Jasen v. K.C.Sagar and Ors. (supra), relied upon by learned counsel for the petitioner, this Court held:
"The petitioner preferred an appeal revision against the aforesaid order and also applied for stay of the order passed by the Collector, Rajkot, respondent No. 2 herein. The respondent No 1 Secretary (Appeals), Page 11 of 16 HC-NIC Page 11 of 16 Created On Mon Aug 14 19:15:14 IST 2017 C/SCA/14326/2015 JUDGMENT Revenue Department, entertained the appeal but refused to grant stay. By order dated June 14, 1985, the stay has been refused. No reasons are given for the refusal of the stay. Once the appeal is admitted and when the matter is pertaining to immoveable property and wherein the petitioner is admittedly in possession of the land since the year 1967, the respondent No. 1 ought to have granted stay and ought to have directed that the statusquo be maintained pending the hearing and final disposal of the appeal. In the facts and circumstances of the case and particularly in view of the fact that the impugned order (Annexure "B") is laconic and non~speaking one and the petitioner is in possession since the year 1967 impugned order Annexure"B" is required to be quashed and set aside."
18. In Nagji Uka v. Administrator of Sakedi Agri. Co.op. So. Ltd. & Ors. (supra), also relied upon by learned counsel for the petitioner, it is held as below:
"Now, two things are required to be noted; first, that an order granting or refusing to grant stay in a quasi~judicial proceeding such as a revision application under sec. l55 has to be made by the authority which is Page 12 of 16 HC-NIC Page 12 of 16 Created On Mon Aug 14 19:15:14 IST 2017 C/SCA/14326/2015 JUDGMENT competent to entertain such proceedings. If the competent authority is disinclined to grant interim relief, it must indicate briefly though, the reasons for not granting such interim relief. In the present case, there is laconic communication sent by a Section Officer of a Department of the Government, stating that the request for stay of further proceedings cannot be entertained. This procedure is highly irregular. Secondly, the question of grant or refusal of interim relief in a quasi judicial proceeding involves exercise of judicial discretion. Such judicial discretion like other judicial discretions has to be exercised with vigilance and circumspection according to justice, common sense and sound judgment. The discretion is to know through law what is just. (see Lonad Gram Panchayat v. Ramgiri, A.I.R. 1968 S.C.
222). If discretion is not judicially exercised and if the exercise of the discretion is capricious or perverse or ultra vires, it would be competent to this court to interfere in the exercise of its writ jurisdiction under Article 227 of the Constitution (see Lonad Gram Panchayat (supra)). In the present case, once the revision application was entertained by the State Government, according to justice, commonsense and sound judgment, the further Page 13 of 16 HC-NIC Page 13 of 16 Created On Mon Aug 14 19:15:14 IST 2017 C/SCA/14326/2015 JUDGMENT proceedings ought to have been stayed, for, the revision application would become entirely infructuous unless interim relief is granted. It was open to the competent authority to take up the matter for very early hearing if it found that the circumstances of the case justified the same. However, to refuse interim relief after entertaining a revision application would be to deny a just relief to the litigant pending the hearing of the cause.
Discretion in the matter of grant of interim relief could not be said to have been judicially exercised be refusal of such relief."
19. In the impugned order, though the SSRD has stated that there is no primafacie case in favour of the petitioner, there are no reasons in support of such a finding. The petitioner would undoubtedly suffer irreparable loss if the order of the Collector is not stayed, which aspect has not been taken into consideration by the SSRD.
20. Another aspect emerging from the impugned order of the SSRD is the finding that has been recorded, to the effect that primafacie, the Page 14 of 16 HC-NIC Page 14 of 16 Created On Mon Aug 14 19:15:14 IST 2017 C/SCA/14326/2015 JUDGMENT order of the Collector that is impugned in the revision application is correct. Such a finding, which amounts to the expression of final conclusion ought not to have been arrived at, at the interim stage.
21. Considering the totality of the facts and circumstances of the case, the following order is passed:
(i) The order dated 07.07.2015, passed by respondent No.1/2 in Revision Application No.MVV/HKP/BNS/144/14, rejecting the application for the grant of interim stay pending the revision application, is quashed and set aside.
(ii) The SSRD shall consider and decide Revision Application No.MVV/HKP/BNS/144/14 in accordance with law after hearing the parties and taking into consideration all aspects of the matter, including that of delay and locus standi as raised by the petitioner, and pass a reasoned order.Page 15 of 16
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(iii) Till such time as the SSRD decides the revision application on merits, the order dated 20.09.2014, passed by the Collector, Banaskantha, in Revision Case No.38/2014, shall remain stayed.
22. It is clarified that no observation made in this order be taken to be one touching upon the merits of the case.
23. The petition is allowed, in the above terms. Rule is made absolute to the above extent. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) sunil Page 16 of 16 HC-NIC Page 16 of 16 Created On Mon Aug 14 19:15:14 IST 2017