Gujarat High Court
Barakatali Hayatkhan Nagori vs State Of Gujarat Thro on 13 June, 2013
Author: Harsha Devani
Bench: Harsha Devani
BARAKATALI HAYATKHAN NAGORI....Petitioner(s)V/SSTATE OF GUJARAT THRO SPECIAL SECRETARY(APPEAL) C/SCA/2853/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.2853 of 2013 ============================================= BARAKATALI HAYATKHAN NAGORI....Petitioner(s) Versus STATE OF GUJARAT THRO SPECIAL SECRETARY(APPEAL) & 4....Respondent(s) ============================================= Appearance: MR AMIT N CHAUDHARY, ADVOCATE for the Petitioner(s) No.1 GOVERNMENT PLEADER for the Respondent(s) No.1 ============================================= CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI Date : 13/06/2013 ORAL ORDER
1. This petition is directed against the order dated 16th August, 2012 made by the Additional Secretary, Revenue Department (Appeals), Ahmedabad (hereinafter referred to as the revisional authority ) whereby the stay application made by the petitioner has been rejected.
2. The facts of the case are that the father of the petitioner - Nagori Hayatkhan Husenkhan had executed a Hiba declaration lekh in favour of the respondent No.5 - Nasirkhan Jahangirkhan Nagori on a Rs.10/- stamp paper in respect of land bearing survey No.253 paiki admeasuring 3743-21-97 square metres of Mauje Palanpur Kasba. Pursuant thereto, Mutation Entry No.2753 came to be posted on 4th July, 1987. Being aggrieved by the aforesaid mutation entry, the petitioner went in appeal before the Deputy Collector, Palanpur, who, vide order dated 29th July, 2011, set aside the mutation entry. The respondent No.5 herein challenged the aforesaid order of the Deputy Collector before the Collector, Banaskantha. Vide order dated 7th December, 2011 the revision application came to be partly allowed whereby the matter came to be remanded to the Deputy Collector by holding that Mutation Entry No.2753 was partly erroneous and to that extent, the same is required to be set aside and fresh entry is required to be made in accordance with the Hiba lekh after measuring the area of the land and after affording the parties an opportunity of hearing. The above order of the Collector came to be challenged by the petitioner before the revisional authority. The petitioner also moved a stay application before the revisional authority seeking stay of the impugned order of the Collector. By the impugned order, the aforesaid stay application came to be rejected by the revisional authority on the ground that the petitioner had not made out any prima facie case and that balance of convenience did not lie in favour of the petitioner, as well as on the ground that the Collector had directed the area to be measured in terms of the Hiba lekh and to pass an order in accordance with law on account of which the petitioner would get full opportunity of making his submissions before the Deputy Collector. Being aggrieved, the petitioner has filed the present petition.
3. Mr. Amit N. Chaudhary, learned advocate for the petitioner vehemently assailed the impugned order and submitted that the revisional authority was not justified in rejecting the stay application made by the petitioner. It was submitted that ground No.2 stated by the revisional authority that the petitioner can make an application before the Deputy Collector is erroneous inasmuch as the scope of remand is very limited to the measurement of the land in terms of the Hiba lekh and that the Collector, in effect and substance, has allowed the revision application filed by the respondent No.5. Referring to the order passed by the Deputy Collector, it was pointed out that whereas the Hiba lekh was executed on 2nd March, 1987 in respect of land admeasuring 3293-1192 square metres, the father of the petitioner had sold 450-1050 square metres of land on 5th August, 1985 to Prakashkumar Babulal Soni, Prahladkumar Babulal Soni and Dineshkumar Babulal Soni, who in turn had sold the said land to Ferozkhan Jahangirkhan Nagori. It was submitted that thus, on the date when the Hiba lekh came to be executed, the petitioner s father was not the owner of the entire land admeasuring 3293-1192 square metres. Under the circumstances, there was no occasion for him to execute a Hiba lekh in respect of the 3293-1192 square metres as he was not the owner of the entire land. The learned advocate for the petitioner further submitted that the Hiba lekh is not genuine and as such, the Collector was not justified in setting aside the order passed by the Deputy Collector and the revisional authority was not justified in not staying the said order.
4. From the facts noted hereinabove, it is apparent that what the Deputy Collector has noted is that out of the lands admeasuring 3293-1192 square metres, the petitioner s father had sold 450-1050 square metres of land in favour of the above named persons. Under the circumstances, as on the date when the Hiba declaration came to be executed, the petitioner s father was not the owner of the entire land. The Collector has, therefore, accepting the aforesaid finding of the Deputy Collector, remanded the matter to the Deputy Collector to examine the measurements of the land and to make necessary amendment in the mutation entry to the extent of the discrepancy in the Hiba declaration. The Collector has also observed that if at all it is the contention of the petitioner that the Hiba declaration itself is not genuine, the same has to be proved in a court of competent jurisdiction.
5. It is in the light of the aforesaid findings recorded by the Collector that the revisional authority has refused to stay the impugned order of the Collector.
6. Since the revision is still pending before the revisional authority, this court deems it fit to refrain from making any comment on the merits of the case as the same may affect the final outcome of the revision. Insofar as the impugned order is concerned, the revisional authority has merely refused to stay the order of the Collector. By the said order the Collector has partly upheld the order of the Deputy Collector and has held that mutation entry No.2753 is defective and hence the same should be cancelled and has directed that the area of the land as per the Hiba declaration should be ascertained and after affording an opportunity of hearing mutation entry be made. Thus, since there was a discrepancy in the area of the lands given under the Hiba declaration, the Collector has remanded the matter to ensure that the mutation entry reflects the correct position. Thus, staying the order of the Collector will not serve any useful purpose inasmuch as giving effect to the said order would mean that the revenue record would reflect the correct area of the subject land, whereas if the order is stayed the same would amount to allowing the revision at this stage. Under the circumstances, this court does not find any infirmity in the impugned order passed by the revisional authority so as to warrant interference.
7. In the result the petition fails and is accordingly summarily dismissed.
8. It is, however, clarified that in view of the fact that the main matter is still pending for adjudication before the Tribunal, this court has refrained from making any comments on the merits of the case. It is further clarified that any observations made in this order are only for the purpose of deciding the controversy involved in the present petition and has no bearing on the merits of the revision application. The revisional authority shall, therefore, decide the revision application in accordance with law without, in any manner, being influenced by any of the observations made in this order as well as the fact that the present petition has been dismissed.
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