Gujarat High Court
Bhikhabhai Kumbhabhai Vaja vs Special Secretary Revenue on 15 March, 2023
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13401 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA Sd/-
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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 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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BHIKHABHAI KUMBHABHAI VAJA
Versus
SPECIAL SECRETARY REVENUE
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Appearance:
for the Petitioner(s) No. 7.2
MS DHARA M SHAH(5546) for the Petitioner(s) No.
1,2,3,4,5,6,6.1,7,7.1,7.3,8
MR ASHUTOSH DAVE, AGP for the Respondent(s) No. 1,2,3,4
MR BHAVYARAJ GOHIL FOR MR AJ YAGNIK(1372) for the Respondent(s)
No. 5,6
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 15/03/2023
ORAL JUDGMENT
1. Heard learned advocate Ms.Dhara M. Shah for the petitioners, learned Assistant Government Pleader Mr.Ashutosh Dave for the respondent Page 1 of 12 Downloaded on : Tue Mar 21 20:32:03 IST 2023 C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023 nos.1 to 4 and learned advocate Mr.Bhavyaraj Gohil for learned advocate Mr.A.J.Yagnik for the respondent nos.5 and 6.
2. Rule. Learned AGP waives service of notice of rule on behalf of respondent nos.1 to 4 and learned advocate Mr.Bhavyaraj Gohil waives service of notice of rule on behalf of respondent nos.5 and 6.
3. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:
"(a) Your Lordships may be pleased to admit and allow this application;
(b) Your Lordships may be pleased to issue a writ of mandamus or in the nature of certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 14.06.2020 passed by SSRD, Ahmedabad in MVV/Gir/General/Vashi/.1201/2021 for land in question; and remand back the matter to the SSRD for the adjudication of the matter on merits;..............."
4. The brief facts of the case are that the petitioners are the legal heirs of Kumbhabhai Page 2 of 12 Downloaded on : Tue Mar 21 20:32:03 IST 2023 C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023 Vaja. Late Kumbhabhai Vaja was declared a protected tenant vide proceedings under Section 84(c) of the Gujarat Tenancy and Agricultural Lands Act, 1948 (for short 'Tenancy Act').
4.1. It is the case of the petitioners that the land bearing Survey nos.764/2 and 771 of Village Chhara, Taluka Kodinar, District Gir- Somnath was running in the name of late Kumbhabhai Vaja since the year 1953 in the revenue record as per the mutation entry no.436 dated 05.10.1953 and mutation entry no.448 dated 09.11.1953. Mutation entry no.436 was entered into revenue record on the basis of the sale deed in favour of three persons namely Kumbhabhai Vaja, Lakha Vasta and Boda Karsan who jointly purchased the land in question from one Shri Gayakwad Agriculture Company for Rs.140/- on 26.05.1953. Name of late Kumbha Vaja was Page 3 of 12 Downloaded on : Tue Mar 21 20:32:03 IST 2023 C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023 entered into the revenue record vide entry no.445 dated 09.11.1953 on the basis of his holding the land as protected tenant which was later on certified.
4.2. It appears that thereafter entry no.1085 was mutated on 07.12.1968 by Mamlatdar and ALT on the basis of the order passed in Ganot Case No.229 of 1968 whereby the sale deed executed on 26.05.1953 was regularized by levy of penalty of Re.1/-.
4.3. The respondent nos.5 and 6 made an application on 31.07.2015 to enter their names in the revenue records in respect of the land in question before the Mamlatdar who by order dated 13.07.2016 rejected such application on the ground of delay of about 49 years for preferring such application. 4.4. Being aggrieved respondent nos.5 and 6 preferred appeal before the Deputy Collector Page 4 of 12 Downloaded on : Tue Mar 21 20:32:03 IST 2023 C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023 being RRT/MISC. APPEAL CASE No.01/19. The Deputy Collector by the order dated 02.07.2019 allowed the appeal taking into consideration that the sale deed executed in favour of the three persons i.e. Lakha Vasta, Boda Karsan and Kumbha Khima in the year 1953 and respondent nos.5 and 6 were the legal heirs of the Boda Karsan and Lakha Vasta. 4.5. The petitioners therefore being aggrieved by the order of the Deputy Collector preferred Appeal being No.Land/3/Appeal/1/2020 before the Collector, Gir Somnath, who by order dated 01.09.2020 rejected the appeal filed by the petitioners confirming the order passed by the Deputy Collector.
4.6. The petitioners therefore, being aggrieved by the order dated 01.09.2020 passed by the Collector, preferred Revision Application under Section 211 of the Gujarat Land Revenue Page 5 of 12 Downloaded on : Tue Mar 21 20:32:03 IST 2023 C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023 Code, 1879 (for short 'the Code') before the Special Secretary (Appeals) Revenue Department (for short 'SSRD'). The SSRD however, by letter dated 14.06.2020 returned the papers of the Revision Application to the petitioners on the ground that the dispute is with regard to the right of Ganot and therefore, as per rules of business, the SSRD has no jurisdiction to hear the revision application filed by the petitioners. 4.7.Being aggrieved, the petitioners have approached this Court with the aforesaid prayers.
5. Learned advocate Ms.Dhara M. Shah for the petitioners submitted that the petitioners have challenged the order passed by the Deputy Collector directing the Mamlatdar to enter the name of the respondent nos.5 and 6 in the revenue record before Collector under Page 6 of 12 Downloaded on : Tue Mar 21 20:32:03 IST 2023 C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023 Section 203 of the Code and therefore, the revision application under Section 211 of the Code would be maintainable and the SSRD has committed an error by returning the papers of revision application to the petitioners. Learned advocate Ms.Shah also referred to and relied upon the Rules of the Business, 1990 of the SSRD to point out that the SSRD has jurisdiction to hear the revision against the appeal decided under Section 203 of the Code.
6. Learned AGP Mr.Ashutosh Dave for the respondent authorities relied upon the averments made in affidavit filed on behalf of respondent nos.2- Collector and respondent no.4-Mamlatdar and submitted that as per the explanation received from the Collector vide letter dated 02.04.2022 addressed to the AGP, it is stated by the Collector that the order dated 01.09.2020 in Case No. Land/ 3/ Appeal/ 1/2020 was passed under Section 203 of the Page 7 of 12 Downloaded on : Tue Mar 21 20:32:03 IST 2023 C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023 Code.
6.1. Learned Assistant Government Pleader Mr.Dave submitted that the Mamlatdar has also stated that the proceedings are initiated under the provisions of the Code and therefore, the SSRD would have the jurisdiction to hear the revision application filed by the petitioners.
7. In view of the above facts emerging from the record, the question would arise as to whether the proceedings which were initiated under the provisions of the Code before the Mamlatdar and carried further before the Deputy Collector and Collector can be said to be not under the provisions of the Code only because the issue pertains to the facts relating to the protected tenant or not.
8. It is also pertinent to note that respondent Page 8 of 12 Downloaded on : Tue Mar 21 20:32:03 IST 2023 C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023 nos.5 and 6 have challenged the mutation entry no.436 dated 05.10.1953 before the Mamlatdar which was also rejected on the ground of delay by order dated 09.02.2017 and the same has not been carried in appeal. Respondent nos.5 and 6 have also filed Regular Civil Suit No.88 of 2018 in the Court of Additional Civil Judge, Kodinar with a prayer to declare them as co-owner of the land in question.
9. Section 211 of the Code reads as under:
"Power of State Government and of certain revenue officers to call for and examine records and proceedings of subordinate officers;
211. The [State] Government and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.
The following officer may in the same manner call for and examine the proceedings of any officer subordinate to them in any matter Page 9 of 12 Downloaded on : Tue Mar 21 20:32:03 IST 2023 C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023 in which neither a formal nor a summary inquiry has been held, namely, [* * *] a Mamlatdar, a Mahalkari, an Assistant Superintendent of Survey and an Assistant Settlement Officer.
If in any case, it shall appear to the State Government, or to such officer aforesaid, that any decision or order or proceedings so called for should be modified, annulled or reversed, it or he may pass such order thereon as it or he deems fit:
Provided that an Assistant or Deputy Collector shall not himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pass such order thereon as he may deem fit:"
10. On perusal of the above provision, it is clear that the State Government and certain Revenue officers have power to call for and examine records and proceedings of subordinate officers which includes any order passed in any proceedings for the purpose of satisfying as to the legality or propriety of any decision or order passed and as to the regularity of proceedings of such officers. When the Deputy Collector and the Collector have passed the orders under the provisions Page 10 of 12 Downloaded on : Tue Mar 21 20:32:03 IST 2023 C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023 of the Code, the SSRD could not have returned the papers on the ground that as the issue pertains to the tenancy and therefore, it has no jurisdiction.
11. On the contrary, in view of the facts which are stated in the revision memo filed by the petitioners, it is clear that the grievance of the petitioners was with regard to the entering the names of respondent nos.5 and 6 in the revenue record. The SSRD has therefore, committed an error by returning the papers to the petitioners by misinterpreting the Rules of Business.
12. The petition is therefore allowed. The impugned order dated 14.06.2022 passed by the SSRD is hereby quashed and set aside and the matter is remanded back to the SSRD. The petitioner is also directed to again lodge original papers of the Revision Applications Page 11 of 12 Downloaded on : Tue Mar 21 20:32:03 IST 2023 C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023 which were returned by the SSRD by the impugned order within a period of two weeks from the date of receipt of this order. The SSRD shall thereafter hear such revision application which was registered as MVV/Gir/General/Vashi/1201/ 2021 in accordance with law as per the provisions of Section 211 of the Code after giving opportunity of hearing to all the concerned parties.
Rule is made absolute to the aforesaid extent. No order as to costs.
Sd/-
(BHARGAV D. KARIA, J) URIL RANA Page 12 of 12 Downloaded on : Tue Mar 21 20:32:03 IST 2023