Gujarat High Court
Somabhai Pratapbhai Ninama vs Additional Secretary & 6 on 7 August, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/LPA/855/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 855 of 2014
In
SPECIAL CIVIL APPLICATION NO. 3664 of 2013
With
CIVIL APPLICATION NO. 8667 of 2014
In
LETTERS PATENT APPEAL NO. 855 of 2014
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SOMABHAI PRATAPBHAI NINAMA....Appellant(s)
Versus
ADDITIONAL SECRETARY & 6....Respondent(s)
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Appearance:
MR MANISH K KAJI, ADVOCATE for the Appellant(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 07/08/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This appeal is directed against the judgement of the Learned Single Judge dated 14.7.2014 passed in Special Civil Application No.3664/2013. Case of the petitioner is that land bearing survey no.209 admeasuring 3 hectares 50 Are and 6 sq. mtrs of village Sagvada, Taluka Morva, District Panchmahal, was purchased by his grandfather from his self acquired property. After his death, it was Page 1 of 4 C/LPA/855/2014 ORDER inherited by his legal heirs which included his sons and grand children of predecessor sons. In such property brother of his grandfather would have no share. Many years later, the brother of grandfather of the petitioner approached the Deputy Collector for recording their names in the records of the said land. The Deputy Collector passed an order dated 30.4.1997 under the purported exercise of powers under section 73AA of the Bombay Land Revenue Code. Against such order, the petitioner preferred a belated appeal before the Collector. The Collector after condoning the delay, entertained the appeal and allowed the same on the ground that on the properties of grandfather, the petitioner would not have any right over the property. He deleted the names of such persons upon which the aggrieved person approached the Secretary(Appeals), Revenue department, Government of Gujarat by filing revision petition. Such revision was allowed by an order dated 4.3.2013. The Revenue Secretary was of the opinion that the appeal before the Collector was not maintainable. The Deputy Collector under section 73AA of the Bombay Land Revenue Code would be exercising delegated powers of the Collector. Against his order therefore, no appeal before the Collector would lie. He was also of the opinion that the Collector erroneously treated the appeal as an entry proceedings under rule 108 of Bombay Land Revenue Rules. On such grounds, the revision petition was allowed.
2. Against such order of the Revenue Secretary, the appellant filed writ petition. The learned Single Judge dismissed the petition mainly on the ground that the appeal to the Page 2 of 4 C/LPA/855/2014 ORDER Collector was rather belated. Against such judgement of the learned Single Judge present appeal is preferred.
3. Having heard learned counsel Shri Kazi for the appellant, we are of the opinion that the Revenue Secretary was correct in holding that the appeal before the Collector was not maintainable. If the Deputy Collector has passed order under section 73AA of the Bombay Land Revenue Code which powers primary lie with the Collector but were delegated to the Deputy Collector, the appeal before the Collector would not lie. We are doubtful whether the Deputy Collector under section 73AA of the Bombay Land Revenue Code could have passed such an order. However, we express no conclusive opinion on this aspect of the matter, but leave it to the appellant to challenge such order before appropriate authority. If such a petition is filed latest by 31.8.2014, surely, the authority would consider the intervening factors and the fact that the appellant was pursuing his remedies bona fide before other authority. His contention that before passing order under section 73AA, the Deputy Collector granted him no notice and also the fact that the Collector in appeal had condoned the delay, would also be relevant aspects on the question of his approaching higher authority after a long passage of time.
4. With these observations, appeal is disposed of. Civil Application is also disposed of.
(AKIL KURESHI, J.) Page 3 of 4 C/LPA/855/2014 ORDER (MOHINDER PAL, J.) raghu Page 4 of 4