Gujarat High Court
Pranbhai Bajidas Patel vs State Of Gujarat on 6 May, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/10897/2021 ORDER DATED: 06/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10897 of 2021
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PRANBHAI BAJIDAS PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1,2
MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 3
MS NIKITA C GANDHI(11570) for the Respondent(s) No. 3
MS RUMI M GANDHI(3472) for the Respondent(s) No. 3
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 06/05/2022
ORAL ORDER
1. By filing this petition under Article 226 of the Constitution of India, the petitioners have prayed to quash and set aside impugned order dated 19.6.2021 passed by the Mamlatdar and Executive Magistrate, Kalol, whereby upon application moved by private respondent, it was ordered to enter his name in the revenue record for the land in question.
2. The brief facts giving rise to the present petition are as under:-
2.1 The dispute pertains to Block No.781/1B of Village-Jaspur, Taluka-Kalol, District-Gandhinagar. It was the case of private respondent herein that the land in question was given as gift to him by Bai Kanku widow of Patel Manilal Chatur, for which entry no.445 was mutated in the revenue record. According to the private respondent, in the revenue record the land in Page 1 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022 C/SCA/10897/2021 ORDER DATED: 06/05/2022 question was not included in aforesaid entry no.445. That land bearing Revenue Survey No.756/1/B/P, 773/3, 744/3 having new Block No.781 were reflected in mutation entry no.43 in the name of Bai Kanku widow of Patel Manilal Chatur. It is contended that thereafter vide entry no.362/1 certain corrections were made. However, the land in question was not reflected in the Village Form No.7 and 12 extracts. Therefore, initially private respondent had made an application for mutation of his name for the land in question on 15.7.2015, which came to be dismissed by the Mamlatdar. Against said order of Mamlatdar, private respondent filed an application which also came to be dismissed in 2016. The order of Mamlatdar was challenged before the Deputy Collector, which came to be rejected by order dated 30.8.2017.
2.2 That on 18.10.2019, Superintendent of Land Records has given an opinion that there is no anomaly in the revenue record for the land in question and entry no.445 is correctly reflected and no proceedings for correction of the same can be made. It is contended that order of Deputy Collector came to be confirmed by the District Collector on 12.2.2020. It is also contended that the application of private respondent for making correction in Village Form No.7 and 12 extract for the land in question for entering his name also came to be rejected by Settlement Commissioner vide order dated 24.2.2020.
2.3 Thereafter, petitioner no.2 purchased the land in question by way of registered Sale Deed, whereupon mutation entry no.6024 came to be recorded on 15.1.2021, which was not certified. Said entry no.6024 was objected by private respondents before Deputy Collector and Deputy Collector Page 2 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022 C/SCA/10897/2021 ORDER DATED: 06/05/2022 refused to certify the said entry, however, Deputy Collector further directed that challenge to entry no.6024 shall not be entertained. It is further alleged that similar order was passed on 8.6.2021 by Deputy Collector in which he had rejected the objections of private respondents with regard to entry no.6006, which was also not certified. The orders rejecting claim of private respondent by the Deputy Collector and District Collector and other authorities have become final and have not been set aside.
2.4 The private respondents once again made an application on 20.4.2020 to Mamlatdar to make correction in revenue record and to enter his name with regard to the land in question. The Mamlatdar and Executive Magistrate without giving any opportunity of hearing to the petitioners, vide order dated 19.6.2021 allowed application of private respondent and directed that record should be corrected and name of private respondent should be entered in the land in question. Being aggrieved by order of Mamlatdar, present petition has been preferred.
2.5 Respondent no.3 has filed affidavit-in-reply to the matter and has submitted that there is alternative remedy available to the petitioner to challenge the order of Mamlatdar and, therefore, present petition is liable to be dismissed. He has also submitted that exercise undertaken by Mamlatdar is improper. He has also submitted that Civil Suit has been filed and Civil Court has granted ad-interim injunction in Civil Suit No.129 of 2021, therefore also, the petition is not maintainable. He has also submitted that since his name was not appearing in revenue record, he has applied for correction Page 3 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022 C/SCA/10897/2021 ORDER DATED: 06/05/2022 of revenue record and learned Mamlatdar has properly passed the impugned order. He has prayed to dismiss the petition.
2.6 The petitioner has filed rejoinder reiterating the facts of the petition and denying the contentions raised by respondent no.3 that present petition is not maintainable.
3. Heard learned advocate Mr.S.P.Majmudar for the petitioner, learned AGP Mr.Kanara for the respondent-State and learned advocate Mr.Chinmay Gandhi for private respondent no.3 at length. Perused the material placed on record and decisions cited at bar.
4. Mr.S.P.Majmudar, learned advocate for the petitioners submitted that the petitioners have not been given any opportunity of being heard while passing the impugned order.
He further submitted that latest Village Form No.7 & 12 extract do not reflect name of private respondent. He submitted that if impugned order is implemented, name of the petitioner no.1 would be removed from revenue record. He also submitted that earlier similar applications of the private respondent were rejected by the revenue authorities. He submitted that Mamlatdar would not have reviewed its own earlier order rejecting the prayer of respondent no.3. He further submitted that earlier order has attained finality upto Collector. He also submitted that alternative remedy is not a bar when the order is passed in violation of principles of natural justice. He has relied upon following decisions in support of his submissions.
4.1 In the case of Magadh Sugar & Energy Limited v. State of Bihar and Others reported in 2021 SCC OnLine Page 4 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022 C/SCA/10897/2021 ORDER DATED: 06/05/2022 SC 801, it is held as under:-
"25. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai 19 and Harbanslal Sahni v. Indian Oil Corporation Ltd. Recently, in Radha Krishan Industries v. State of Himachal Pradesh & Ors a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:-
"28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where Page 5 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022 C/SCA/10897/2021 ORDER DATED: 06/05/2022
(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;
(b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and (1998) 8 SCC 1, (2003) 2 SCC 107, 2021 SCC OnLine SC 334;
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with." (emphasis supplied)
26. The principle of alternate remedies and its exceptions was also reiterated recently in the decision in Assistant Commissioner of State Tax v.
M/s Commercial Steel Limited 22. In State of HP v. Gujarat Ambuja Cement Ltd 23 this Court has held that a writ petition is maintainable before the High Court if the taxing authorities have acted beyond the scope of their jurisdiction. This Court observed:
"23. Where under a statute there is an allegation of infringement of fundamental Page 6 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022 C/SCA/10897/2021 ORDER DATED: 06/05/2022 rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. ITO [(1970) 2 SCC 355: AIR 1971 SC 33] that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition."
4.2 In the case of Yunus Ibrahim Adam Patel v. Special Secretary Revenue Department (Appeal) reported in 2012 (2) GLR 1558, this Court has held as under:-
"20. It is now a settled position of law that a quasi- judicial authority derives its powers from the statutory provisions under which it is empowered to Act and cannot exercise power not vested in it by the statute. The extent of power to be exercised by a quasi-judicial authority is circumscribed by the language of the statute. The position of law whether the State Government has power to review its own order under Section 211 of the Code is no longer res-integra. In Bhagwanji Bawanji Patel v. State of Gujarat And Anr. (supra), the Court has observed in Paragraph 9 that:Page 7 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022
C/SCA/10897/2021 ORDER DATED: 06/05/2022 "9. The contention of Mr.Padia, the learned Advocate for the appellant, is that the Government can exercise its powers under sec.211 only once, and once any such powers are exercised by the State Government either suo motu or at the instance of some one else under any provision of law which entitles it to revise the same, its powers stand exhausted. In other words, according to him, it cannot revise the order passed by it, or, rather, it cannot review its own order once passed in absence of any specific provision whereby such powers are given to it in law. Now, it is common ground and over which no dispute is raised by Mr.Chhaya, the learned Assistant Govt. Pleader for the state, that there is no provision in the Land Revenue Code, whereby the State Government can review its own order already passed in exercise of its powers under sec.211 of the Land Revenue Code, and, therefore, if the contents of the letter dated 23-8-60 can be taken as a decision so communicated in the matter, the remedy of the State Government under sec.211 would not survive. It may, if permissible in law, have recourse to a remedy by filing a suit in a civil Court. But it cannot review its own order. No such powers are shown to have been in the State Govt. under the provisions of the Land Revenue Code."
21. In Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur And Others (supra), the Supreme Court has held that:
Page 8 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022C/SCA/10897/2021 ORDER DATED: 06/05/2022 "11. It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi-judicial authority.
It is not disputed that the provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice-Chancellor. In the circumstances, it must be held that the Vice- Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7, 1987. The said order of the ViceChancellor dated March 7, 1987 was a nullity."
22. From the above judicial pronouncements, it is clear that the power of review is not available to the State Government under Section 211 of the Code, as none has been expressly conferred by the Statute."
4.3 In view of above, he has prayed to allow present petition.
5. On the other hand, Mr.Gandhi, learned advocate for respondent no.3 submitted that alternative remedy is available to the petitioners and, therefore, present petition may not be entertained. He submitted that the land in question was gifted to respondent no.3 and relevant entry in this regard in Village Page 9 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022 C/SCA/10897/2021 ORDER DATED: 06/05/2022 Form No.6 is at page no.151 of the compilation. He also submitted that at page no.154, there is an entry showing the name of respondent no.3. He has also relied upon Gift Deed, copy of which is produced at page 155 of the compilation, to state that the land in question was given as a gift to respondent no.3. He has also taken this Court to the observations made by Superintendent Land Records in his order dated 18.10.2019 wherein it is observed that entry regarding Gift Deed is not made in the Village Form No.7 and 12 and only after such entry, further process can be done. He, therefore, states that it is believed that the land in question was given as a gift to respondent no.3. In support of his submissions, he has relied upon following decisions:-
5.1 In the case of Authorized Officer, State Bank of Travancore v. K.C.Mathew reported in 2018 (3) SCC 85, Supreme Court has observed as under:-
"10. Even prior to the SARFAESI Act, considering the alternate remedy available under the DRT Act it was held in Punjab National Bank vs. O.C. Krishnan and others, (2001) 6 SCC 569, that :-
"6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional Page 10 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022 C/SCA/10897/2021 ORDER DATED: 06/05/2022 provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."
5.2 In Special Civil Application No.7676 of 2016, in the case of Smt.Jayshreeben Amitkumar Chauhan v. Jashwantlal Bhulabhai Parmar and Others decided on 15.2.2017, this Court has held as under:-
"6.1 The aforesaid provisions of the Act as inserted undoubtedly gives a locus standi to a party to claim tenancy right or leasehold rights in relation to the secured assets before the Tribunal by preferring appeal under Section 17 of the Act. In other words, there is an alternative remedy under Section 17 of the Act of an appeal before the Tribunal and to get the issues of tenancy right and leasehold rights determined by the Tribunal by adducing evidence.
6.2 It is well settled that when the remedy under section 17 of the Act is available to approach by way of appeal before the Debt Recovery Tribunal, the petitioner has to avail the same. The petitioner is entitled to raise all the issues including the claim of tenancy while pursuing such alternative forum. The stage at which the case is placed, is an appropriate stage where the remedy before the Tribunal could be properly pursued. It is held by the Supreme Court that order under section 14 of the Act also constitutes post-13(4) stage to avail alternative remedy and challenge the order passed under section 14 of the Act. In United Bank of India vs. Satyawati Tondon Page 11 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022 C/SCA/10897/2021 ORDER DATED: 06/05/2022 and Others [(2010) 8 SCC 110], the Supreme Court cautioned about the High Court readily entertaining writ petitions even though an efficacious remedy of appeal under section 17 is available to the aggrieved party."
5.3 In Special Civil Application No.2337 of 2017, in the case of Om Shiv Lumbers Pvt. Ltd. v. Corporation Bank decided on 13.2.2017, this Court has held as under:-
"6. In Authorised Officer, Indian Overseas Bank v. Ashok Saw Mill [(2009) 8 SCC 366], the Apex Court held that remedy by way of appeal under Section 17 is available not only upto the stage referable to Section 13(4), but even in respect of measures taken post13(4) stage. In the present case, the stage at which the petitioner is beset with, is such stage. The petitioner is aggrieved person for the purpose of Section 17 of the Act.
6.1 In Kanaiyalal Lalchand Sachdev v. State of Maharashtra [(2011) 2 SCC 782], the Supreme Court has stated that the measures under Section 14 constitutes the action taken after the stage of Section 13(4) and a remedy of appeal under Section 17 would be available. In that case, refusal by the High Court to entertain the writ petition was held to be fully justified."
5.4 In view of above, he has prayed to dismiss present petition.
6. Learned AGP Mr.Kanara has also submitted that since there is an alternative remedy available to the petitioners against the impugned order, he has prayed to dismiss present petition.
Page 12 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022C/SCA/10897/2021 ORDER DATED: 06/05/2022
7. In rejoinder, Mr.Majmudar, learned advocate for the petitioners has submitted that the order passed by Mamlatdar is not sustainable in the eyes of law, as earlier application of respondent no.3 came to be dismissed. He submitted that, therefore, inspite of availability of alternative remedy, this is a fit case to allow present petition by setting aside impugned order.
8. Having considered the submissions made on behalf of the parties and the material placed on record as well as decision cited at bar, it appears that there is no dispute about the fact that earlier private respondent had approached revenue authorities for mutating his name in respect of the land of deceased Kankuben. It is also an admitted fact that his earlier applications were rejected by all the authorities. Even the Settlement Commissioner has opined that there is no question of entering the name of private respondent in Village Form No.7 & 12 extracts. It also appears that there is no dispute that the petitioners have purchased the land and on that basis initially entries were made in the revenue record.
9. It appears that though the application for mutating name of private respondent came to be rejected by the authorities, once again he has applied on 20.4.2020 before concerned Mamlatdar, who without issuing notice to the petitioners has passed the impugned order, directing mutation of name of private respondent in the revenue records. Not only that the Mamlatdar has lost sight of the fact that earlier application of private respondent based upon same facts came to be rejected by all the authorities. Thus, when earlier higher authorities Page 13 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022 C/SCA/10897/2021 ORDER DATED: 06/05/2022 have rejected the application of private respondent for mutating his name in the revenue records, lower authority i.e. the Mamlatdar cannot pass any order contrary to earlier orders. Therefore, exercise of power while passing impugned order by the Mamlatdar is contrary to settled legal proposition. It is also an admitted fact that prior to passing of such order, no opportunity of hearing was being given to the petitioner. Thus, when the Mamlatdar has exercised powers, which was not vested in him, especially when the matter was already decided by his higher authorities and was passed without giving any opportunity of being heard to the petitioner, plea regarding availability of alternative remedy pales into insignificance.
10. Therefore, the impugned order of Mamlatdar deserves to be quashed and set aside. Accordingly, present petition is allowed. The impugned order dated 19.6.2021 passed by the Mamlatdar and Executive Magistrate, Kalol, whereby upon application moved by private respondent, it was ordered to enter his name in the revenue record for the land in question, is quashed and set aside. No order as to costs. Direct service is permitted.
Sd/-
(DR. A. P. THAKER, J) FURTHER ORDER At this stage, learned advocate Mr.Chinmay Gandhi for respondent no.3 prays to stay this order for a period of eight weeks. The same is objected by learned advocate Mr.Majmudar for the petitioner.
Page 14 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022C/SCA/10897/2021 ORDER DATED: 06/05/2022 Having considered the fact that interim relief was in operation during the pendency of this petition, this order is stayed for a period of eight weeks from today. However, interim relief granted earlier shall continue till then.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 15 of 15 Downloaded on : Fri May 06 20:58:53 IST 2022