Gujarat High Court
Punmaji Sujaji Bhati vs Collector, Banaskantha on 22 February, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/8895/2007 JUDGMENT DATED: 22/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8895 of 2007
With
R/SPECIAL CIVIL APPLICATION NO. 8896 of 2007
With
R/SPECIAL CIVIL APPLICATION NO. 8899 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PUNMAJI SUJAJI BHATI
Versus
COLLECTOR, BANASKANTHA. & ANR.
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Appearance:
MR MEHUL H RATHOD(701) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR. JAYNIL PARIKH ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR MAHESH P PATEL(3381) for the Respondent(s) No. 2
MR N P CHAUDHARY(3980) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 22/02/2024
ORAL JUDGMENT
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NEUTRAL CITATION C/SCA/8895/2007 JUDGMENT DATED: 22/02/2024 undefined Heard learned advocate Mr. Abhijit Rathod for the petitioner and learned AGP Mr. Jaynil Parikh for the respondent no.1 in all the three petitions.
2. Since the issue is common in all three petitions that whether in a proceeding initiated under the provisions of Panchayat Act even if it is in respect of land, whether the Collector was justified in exercising powers under Section 211 of the Bombay Land Revenue Code and take up such orders in revision and pass any order or not and therefore, considering the aforesaid common issue, in respect of all three petitions all these three matters were tagged together and today are heard together and now being decided together.
3. Since except the relevant case number under the Panchayat Act all the other facts are more or less similar, the facts of SCA No. 8896 of 2007 are considered while deciding this set of petitions.
4. Facts as stated in SCA No. 8896 of 2007 can be summarised as under :
The petitioner's forefather was occupying a small parcel of land from the land bearing survey no. 78 paiki of Moje Vajegadh of the then Tharad State since time immemortal as vada land. On 10.6.1948, the then Tharad Page 2 of 10 Downloaded on : Wed Feb 28 20:33:06 IST 2024 NEUTRAL CITATION C/SCA/8895/2007 JUDGMENT DATED: 22/02/2024 undefined State was merged in Union of India and the petitioner's family was occupying the land in question even prior thereto. On 22.6.1968, "vada sahita" came into force and Talaties were assigned with the duty of registering vada occupied by the citizens of the village. Though in the village Vajegadh, 16 vadas were already registered and 4 Vadas could not be registered due to oversight, in the Vada register, the petitioner submitted an application on 1.2.1995 in respect of non-registration of his Vada and therefore, a Choksi Case no. 2 of 1995 was registered before the Deputy Collector of Tharad. Vide order dated 31.3.1995, the Deputy Collector, Tharad Prant after inquiry held that the land in question is in the occupation of the petitioner as vada land and passed an order dated 31.3.1995. The aforesaid order was taken into suomotu revision by Collector, Banaskantha on 21.11.1995/16.1.1996 and he set aside the order passed by the Deputy Collector on 31.3.1995 and declared the land in question as government land and further directed Mamlatdar, Tharad to remove the encroachment by treating the petitioner as encroacher on the government land. The petitioner challenged the order passed by the Collector by way of an Appeal No. TEN.AA.21 of 1996 before the Gujarat Revenue Tribunal and vide order dated 28.4.2006 GRT rejected petitioner's application broadly on the ground that the tax receipt of then Tharad state produced on record is a photo copy and not Page 3 of 10 Downloaded on : Wed Feb 28 20:33:06 IST 2024 NEUTRAL CITATION C/SCA/8895/2007 JUDGMENT DATED: 22/02/2024 undefined an original copy and such photo copies cannot be treated as conclusive evidence. Against the aforesaid order, the petitioner preferred a Review Application being TEN:CA
-11/2006, however, the same was also rejected vide order dated 30.11.2006 and that is how the petitioner has challenged the orders passed by the Collector and GRT respectively in all three petitions.
5. Upon filing of the petitions, this Court issued notice vide order dated 3.4.2007 and vide order dated 21.6.2007, Rule was issued and interim relief in terms of para 11(B) was granted by this Court. Since then the relief is operating in favour of the petitioners in each of the petitione and it was submitted by learned advocate Mr. Abhijit Rathod, that till date the alleged encroachment has not been removed.
6. Heard learned advocate Mr. Abhijit Rathod for the petitioner who submitted that the action of the Collector, Banaskantha of carrying out suo motu revision in respect of an order passed by Deputy Collector in respect of Gujarat Panchayat Case No. 4 of 1995 by exercising power under Section 211 of Bombay Land Revenue Code itself was without jurisdiction for the reason that original proceedings in respect of verification of record, in respect of Panchayat Act, the proceedings under the Panchayat Act were initiated, and therefore, the same Page 4 of 10 Downloaded on : Wed Feb 28 20:33:06 IST 2024 NEUTRAL CITATION C/SCA/8895/2007 JUDGMENT DATED: 22/02/2024 undefined was numbered as Panchayat Case No. 4 of 1995. As the powers to register the vada panchayat is provided under Section 113 of the Panchayat Act and such powers can be exercised by Collector or Deputy Collector upon delegation of powers and therefore, the Deputy Collector while passing the order dated 31.3.1995 had exercised the powers under Panchayat Act and not under Bombay Land Revenue Code.
Section 113 is reproduced as under :
113. . (1) In any revenue village where any property or any right in or over any property is claimed by or on behalf of the panchayat or by any person against the panchayat, it shall be lawful for the Collector, after formal enquiry of which due notice has been given, to pass an order deciding the claim. (2) Any suit institued in any Civil Court after the expiration of one year from the date of the communication of any order passed by the Collector under sub-section (1), or if one or more appeals have been made against such order within the period of limitation, then from the date of communication of any order passed by the final appellate authority as determined according to section 204 of the Bombay Land Revenue Code, shall be dismissed (although limitation has not been set up as a defence) if the suit is brought to set aside, such order or if the relief claimed is Page 5 of 10 Downloaded on : Wed Feb 28 20:33:06 IST 2024 NEUTRAL CITATION C/SCA/8895/2007 JUDGMENT DATED: 22/02/2024 undefined inconsistent with such order, provided that the plaintiff has received due notice of such order. (3)
(a) The powers conferred by this section on the Collector may be exercised also by an Assistant or Deputy Collector or by a Survey Officer or such other officer appointed under the said Code. (b) The formal inquiry referred to in this section shall be conducted in accordance with the provisions relating to such enquiry under the said Code. (c) A person shall be deemed to have had due notice of any inquiry or order under this section if notice thereof has been given in the prescribed manner.
He submitted that merely because the powers were exercised by the Deputy Collector, it doesn't confer any jurisdiction to concerned Collector to exercise suo motu powers under Section 211 for revision of the order passed by Deputy collector and, therefore, such exercise of powers by way of suo motu revision under Section 211 itself were bad and therefore, any order passed in such proceedings was an order without jurisdiction and therefore, even if the petitioner had preferred an appeal against the said order before GRT once the original order itself is not sustainable on account of lack of jurisdiction, both the impugned orders passed by Collector as well as GRT are required to be quashed and set aside.
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7. Learned advocate Mr. Abhijit Rathod also pointed out that there is analogous provision which is parimateria to section 211 of Bombay Land Revenue Code being Section 259 in the Panchayat Act, 1993, whereby the State Government is empowered to call for the proceedings and therefore, the Collector at the relevant point of time could have exercised the powers under Section 259 had the Collector was of the view that the powers exercised by the Deputy Collector and order passed by him are contrary to the provisions of law, such revision of the order is permissible only under section 259 of the Panchayat Act and not under Section 211 of the Bombay Land Revenue Code. While making the aforesaid submissions he prayed for quashing and setting aside the impugned orders passed by Collector and GRT.
8. Though the petition was vehemently opposed by learned AGP Mr. Jaynil Parikh but he could not point out anything from material or from provisions of law that in respect of proceedings initiated against the provisions of Panchayat Act and more particularly in exercise of powers under Section 113 of Panchayat Act, hence, if any order is passed such order can be taken into suo motu revision by exercising the powers under Section 211 of the Bombay Land Revenue Code. Learned AGP Mr. Parikh submitted that considering the fact that both the powers Page 7 of 10 Downloaded on : Wed Feb 28 20:33:06 IST 2024 NEUTRAL CITATION C/SCA/8895/2007 JUDGMENT DATED: 22/02/2024 undefined under Section 259 of the Panchayat Act and powers under Section 211 of the Bombay Land Revenue Code are almost similar, the intention of the authority was to exercise the powers under Section 259 of the Panchayat Act and therefore, merely because the powers are exercised under Bombay Land Revenue Code, considering the parimateria provision of Section 37 which is analogous to Section 113 of the Panchayat Act, the impugned proceedings cannot be said to be without jurisdiction and therefore, the petition is required to be dismissed.
9. Heard learned advocates for the parties and perused the record. On perusal of the record, I found that the petitioner's application for registration of vada or HAKKCHOKSHI was given number as Gujarat Panchayat Act case No. 4 of 1995, which would indicate that such powers were exercised by Deputy Collector in exercise of powers under Section 113 of the Panchayat Act and, therefore, if the Collector wanted to take such order in suo motu revision the Collector could have exercised the power under Section 259 of the Panchayat Act which is analogous to the powers under Section 211 of the Bombay Land Revenue Code. In the instant case the impugned order passed by Collector dated 21.11.1995 itself indicates that the Collector has exercised powers under Section 211 of the Bombay Land Revenue Code for considering an order passed by the Deputy Collector Page 8 of 10 Downloaded on : Wed Feb 28 20:33:06 IST 2024 NEUTRAL CITATION C/SCA/8895/2007 JUDGMENT DATED: 22/02/2024 undefined under the provisions of the Panchayat Act by exercising the powers under Section 211 of the Bombay Land Revenue Code which is not permissible in view of the catena of decisions as the same would amount to cross- utilisation of powers which is held to be bad by catena of decisions including the decision in case of Evergreen Apartment Co-op. Housing Society Vs. Special Secretary, Revenue Department, Gujarat State 1991 (1).
10. In view of above, as the order itself indicates that the exercise of powers by Collector was under
Section 211 of the Bombay Land Revenue Code in respect of proceedings under Panchayat Act, such powers could not have been exercised and therefore the entire proceeding as well as the impugned order passed by the Collector and the order passed by the GRT confirming the order of the Collector are without jurisdiction and therefore, both the impugned orders in each of the petitions are required to be quashed and set aside.
11. Resultantly, the order passed by Collector in SCA No. 8895 of 2007, 8896 of 2007 and SCA no. 8899 of 2007 dated 21.11.1995 bearing no.
K/JMN/4/HAKKCHOKSHI/REVISION/7/95/VASHI.170/72, K/JMN/4/HAKKCHOKSHI/Revision/4/95/VASHI.173/75, K/JMN/4/HAKKCHOKSHI/Revision/10/95/VASHI.176/78 Page 9 of 10 Downloaded on : Wed Feb 28 20:33:06 IST 2024 NEUTRAL CITATION C/SCA/8895/2007 JUDGMENT DATED: 22/02/2024 undefined passed by the Collector, Banaskantha and the order dated 28.4.2006 confirmed by GRT in Appeal Application no. TEN AA. 20 /1996, TEN AA. 21 /1996 and TEN AA. 22 /1996 and rejecting the review are hereby quashed and set aside. The petitions are allowed. Rule is made absolute. No order as to costs.
12. Direct Service is permitted.
NIRZAR S. DESAI,J) MARY VADAKKAN Page 10 of 10 Downloaded on : Wed Feb 28 20:33:06 IST 2024