Gujarat High Court
Dilipbhai Galabji Thakore vs State Of Gujarat & on 21 March, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/20096/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20096 of 2016
with
SPECIAL CIVIL APPLICATION NO. 20114 of 2016
with
SPECIAL CIVIL APPLICATION NO. 20115 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
==========================================================
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 of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== DILIPBHAI GALABJI THAKORE....Petitioner(s) Versus STATE OF GUJARAT & 11....Respondent(s) ========================================================== Appearance:
Special Civil Application No.20096/2016:
MR RS SANJANWALA, SENIOR ADVOCATE WITH MR PARTHIV B SHAH, ADVOCATE for the Petitioner MS AMITA SHAH, ASSISTANT GOVERNMENT PLADER for Respondents Nos.1 to 4 MR ANSHIN H DESAI, SENIOR ADVOCATE WITH MS VENU NANAVATI, MR SALIM M SAIYED, ADVOCATES for Respondent(s) No. 5 MR MANAV A MEHTA, ADVOCATE for the Respondent(s) No. 6 - 12 Page 1 of 53 HC-NIC Page 1 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT Special Civil Application No.20114/2016: MR RS SANJANWALA, SENIOR ADVOCATE WITH MR PARTHIV B SHAH, ADVOCATE for the Petitioners MS AMITA SHAH, ASSISTANT GOVERNMENT PLADER for Respondents Nos.1 to 4 MR ANSHIN H DESAI, SENIOR ADVOCATE WITH MS VENU NANAVATI, MR SALIM M SAIYED, ADVOCATES for Respondent No. 5 Special Civil Application No.20115/2016: MR RS SANJANWALA, SENIOR ADVOCATE WITH MR PARTHIV B SHAH, ADVOCATE for the Petitioners MS AMITA SHAH, ASSISTANT GOVERNMENT PLADER for Respondents Nos.1 to 4 MR ANSHIN H DESAI, SENIOR ADVOCATE WITH MS VENU NANAVATI, MR SALIM M SAIYED, ADVOCATES for Respondent No. 5 ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 21/03/2017 COMMON C.A.V. JUDGMENT
1. Rule. Ms.Amita Shah, learned Assistant Government Pleader, waives service of notice of Rule for respondents Nos.1 to 4 and Ms.Venu Nanavati, learned advocate, waives service of notice of Rule for respondent No.5 in each petition. Mr.Manav A. Mehta, learned advocate, waives service of notice of Rule for respondents Nos.6 to 12 in Special Civil Application No.20096/2015. On the facts, and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petitions are being heard and decided Page 2 of 53 HC-NIC Page 2 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT finally.
2. These petitions have been preferred under Articles 226 and 227 of the Constitution of India, praying for the issuance of an appropriate Writ or direction, partially quashing and setting aside the impugned orders dated 06.10.2016, passed by respondent No.1 Special Secretary (Appeals), Revenue Department ("SSRD" for short), only to the extent that they direct the Deputy Collector (East), Ahmedabad, respondent No.3 herein, to hear the revision applications and decide the same on merits, after following the principles of natural justice.
3. The petitioners have further prayed for the issuance of a Writ of Prohibition restraining the Deputy Collector from adjudicating upon RTS Appeals pending before him, as mentioned in each of the petitions.
4. As identical issues of fact and law are involved in the petitions, the parties are common and the same orders have been challenged and prayers Page 3 of 53 HC-NIC Page 3 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT made, the petitions have been clubbed together.
Common arguments have been advanced by learned counsel for the respective parties and the petitions are being finally decided by this judgment.
5. For the sake of convenience, reference will be made to the facts as described in Special Civil Application No.20096/2016. The rather complicated facts are being narrated in order to give the background, though they may not be immediately relevant to the legal issues arising in the petitions.
6. It is the case of the petitioner that he and respondents Nos.7 to 12 are the legal heirs of Galabji Ataji Thakore. Respondent No.6 is Udaji Ataji Thakore. Galabji Thakore and Udaji Thakore are the legal heirs of Rukhiben, who was the daughter of Chakuji Thakore and was married to Ataji Thakore. Chakuji Thakore had two legal heirs, namely, Gabhaji Chakuji and Rukhiben Chakuji. On the demise of Gabhaji Chakuji, Shakriben, his widow, was the sole survivor of Page 4 of 53 HC-NIC Page 4 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT the pedigree of Gabhaji Chakuji as they had no children. A copy of the pedigree has been annexed as AnnexureC to the petition.
7. Upon the demise of Chakuji Rajaji, the name of Gabhaji Chakuji and Rukhiben Chakuji came to be mutated in the revenue record in respect of Block No.66 vide Mutation Entry No.1534 dated 26.03.1993. Thereafter, upon the demise of Gabhaji Chakuji Thakore, respondent No.5 (the sole contesting respondent), showing himself to be the legal heir of Gabhaji, got his name mutated along with the name of Shakriben, vide Mutation Entry No.1643 dated 30.08.1993 though, according to the petitioner, the said respondent is not the legal heir of Gabhaji Chakuji Thakore. Upon her demise, the name of Rukhiben came to be deleted vide Mutation Entry No.1644 dated 01.09.1993.
8. It is the case of the petitioner that out of the wedlock of Rukhiben with Ataji, Rukhiben had two sons, namely Galabji Ataji and Udaji Ataji. The petitioner asserts that when the alleged fraud Page 5 of 53 HC-NIC Page 5 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT of mutating his name as Amratji Gabhaji by respondent No.5 came to the notice of the petitioners, they challenged both the Mutation Entries No.1643 and 1644, by filing RTS Appeal No.1356/2011 before the Deputy Collector who, after scrutinising the material on record, allowed the appeal and cancelled Mutation Entries Nos.1643 and 1644, further directing the Mamlatdar, Daskroi, to mutate the names of the legal heirs of Gabhaji Chakuji Thakore and Rukhiben Chakuji Thakore, after verification of documents.
9. Aggrieved by this order, respondent No.5 filed RTS Revision No.249/2012 before the Collector, respondent No.2 herein. By an order dated 12.11.2013, the Collector dismissed the said revision application and confirmed the order dated 30.03.2012 passed by the Deputy Collector. Further aggrieved by the abovementioned order of the Deputy Collector, as confirmed by the Collector, respondent No.5 filed Revision Application No.66/2014 before the SSRD, along with an application for the grant of interim Page 6 of 53 HC-NIC Page 6 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT stay. The SSRD rejected the application for stay vide an order dated 27.01.2015.
10. It is the specific case of the petitioner that as no stay order was issued by the SSRD in favour of respondent No.5, and the orders of the Deputy Collector as confirmed by that of the Collector that were under challenge by respondent No.5 in the revision application were operative, the Mamlatdar initiated action in compliance with the order dated 30.03.2012 passed by the Deputy Collector and posted Mutation Entry No.2439 regarding the deletion of the names of Gabhaji Chakuji Thakore and Shakriben Gabhaji Thakore, as they had passed away. The Mamlatdar also posted Mutation Entry No.2440, mutating the names of the petitioners and respondents Nos.6 to 12 as legal heirs of Rukhiben Ataji, daughter of Chakuji Thakore. For some reason, stated to be that the petitioner wanted a more detailed scrutiny of the said mutation entries in view of the alleged fraud committed by respondent No.5, objections were raised by him against these entries. However, Page 7 of 53 HC-NIC Page 7 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT the said objections were later withdrawn. Mutation Entries Nos.2439 and 2440 were certified on 01.09.2012.
11. It is further the case of the petitioner that after a delay of four years from the date of the certification of Mutation Entries No.2439 and 2440, respondent No.5 thought it fit to challenge the order of the Mamlatdar certifying the said entries, before the Deputy Collector. It is specifically averred in the petition that respondent No.5, who had always represented himself as Amratji Chanduji Thakore (as stated in the pedigree), for the first time represented himself as Amratji Chanduji alias Amratji Gabhaji Thakore, even though he is not a legal heir of Gabhaji Chakuji Thakore.
12. This, according to the petitioner, was done by respondent No.5 with the sole aim of reopening issues that had attained finality, in retraction of his own declaration on oath that he has nothing to do with the property in question and is not a legal heir of Gabhaji Chakuji Thakore, Page 8 of 53 HC-NIC Page 8 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT after being unsuccessful in the litigation before the revenue authorities. The petitioner further asserts that during the pendency of the revision application filed by respondent No.5 before the SSRD, the said respondent filed an application for the withdrawal of the revision application, though a copy thereof was not supplied to the petitioner. While permitting the unconditional withdrawal of the revision application, regarding which part of the order the petitioner has no grievance, the SSRD went further by directing the Deputy Collector to hear the appeals filed by respondent No.5 on merits, by granting him an opportunity of hearing. It is this latter part of the order of the SSRD that the petitioner is aggrieved by. According to the petitioner, the appeals filed by respondent No.5 before the SSRD against mutation entries posted in the revenue record, pursuant to the orders of the Deputy Collector and Collector that were challenged in the revision application before the SSRD, came to be withdrawn unconditionally, putting a Page 9 of 53 HC-NIC Page 9 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT confirmatory stamp of finality upon the said orders. By directing the Deputy Collector to hear those appeals on merits after passing the order of unconditional withdrawal would, according to the petitioner, amount to a re opening of issues that have attained finality, apart from depriving the petitioner from his legal right to raise preliminary objections. Another grievance raised by the petitioner is that after permitting the unconditional withdrawal of the revision application, the SSRD could not have issued directions for hearing the matter on merits after granting an opportunity of hearing, which direction seriously prejudices the petitioner and amounts to rehearing matter that have attained finality. It is in the above context that the petition has been filed, seeking the prayers mentioned above.
13. On the other hand, the case of respondent No.5 is that Rukhiben, the predecessorintitle of the petitioner, was not a biological daughter of Chakuji Rajaji but was his stepdaughter, who could not have inherited his property. It is Page 10 of 53 HC-NIC Page 10 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT further the case of respondent No.5 that though he is not the biological son of Gabhaji Chakuji and Shakriben Gabhaji, he had been adopted by them and, therefore, on the death of Gabhaji, his name was rightly mutated in the revenue record along with that of Shakriben and the name of Rukhiben was rightly deleted. It is contended on behalf of respondent No.5 that the entries to this effect were challenged belatedly by the petitioner after a lapse of eighteen years. Respondent No.5 has also stated in his reply that three civil suits are pending, out of which one suit has been filed by the petitioner for partition, which fact has not been disclosed in the petition. The case of respondent No.5 further is that the entries made pursuant to the orders of the Deputy Collector and Collector were posted without hearing him, therefore, he has a right to challenge them and no finality is attached to the said orders.
14. The above facts have been briefly narrated as they have been brought on record by the pleadings and submissions of parties. However, Page 11 of 53 HC-NIC Page 11 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT at the same time, it is necessary to clarify that the scope and ambit of the petition is confined to the extent of the challenge made to the latter part of the impugned order of the SSRD and the prayer seeking the issuance of a Writ of Prohibition, restraining the Deputy Collector from proceeding with the appeals pending before him. The order under partial challenge, being essentially an order permitting the unconditional withdrawal of the revision application and issuing the impugned directions, is not an order on the merits of the matter. It is a matter of record that the Civil Court is in the process of adjudicating civil suits between the parties that would finally determine their lineage, right, title and interest. This Court, therefore, would not go into those issues but would confine its adjudication within the issues arising out of the prayers made in the petition and would refer to those facts that are necessary for the purpose.
15. Learned counsel for the respective parties have been heard at length and have advanced detailed Page 12 of 53 HC-NIC Page 12 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT submissions, which can be summarised as follows
16. Mr.R.S.Sanjanwala, learned Senior Advocate for the petitioner, has submitted that:
(1) Respondent No.5 has been unsuccessful in the litigation before the Deputy Collector and Collector, which went in favour of the petitioner. The orders of these authorities attained finality upon the unconditional withdrawal of the revision application as per the order of the SSRD. Respondent No.5 did not supply a copy of the application for the withdrawal of the revision application, in which several grounds were mentioned, to the petitioner. Being unaware of the same, the petitioner was not heard and could not raise objections to the impugned directions issued by the SSRD after permitting unconditional withdrawal. The said directions have been issued behind the back of the petitioner. While permitting the unconditional withdrawal of the revision application of respondent No.5, the SSRD has recorded certain findings and issued Page 13 of 53 HC-NIC Page 13 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT directions in the absence of the petitioner, which could not have been done. The said directions issued by the SSRD have, very conveniently, opened another avenue for respondent No.5 to reagitate concluded issues after the unconditional withdrawal, in respect of orders that have attained finality. This part of the order of the SSRD is illegal and deserves to be quashed and set aside and the proceedings before the Deputy Collector may, therefore, be prohibited.
(2) The orders of the Deputy Collector and Collector, wherein findings have been recorded on the basis of the declaration made by respondent No.5 on oath, stand confirmed by the order of unconditional withdrawal of the revision application. The mutation entries challenged by respondent No.5 are consequential to the orders of the Deputy Collector and Collector. Once the challenge to the said orders has been withdrawn, there can be no challenge to any consequential action such as posting of entries, taken under those orders which stand Page 14 of 53 HC-NIC Page 14 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT confirmed. Respondent No.5 is estopped from re agitating the same issues that have now been concluded as a result of the unconditional withdrawal of the revision application. He can raise his claim in the civil suit filed by him but not in revenue proceedings.
(3) The SSRD has directed the Deputy Collector to hear the appeals on merits, though there is a delay of four years. The seemingly innocuous directions have farreaching consequences and amount to a rehearing of a concluded matter. The petitioner cannot take the contention of delay, the locus standi of respondent No.5 or the maintainability of the appeals before the Deputy Collector, as such legal rights of the petitioner have been curtailed by the impugned directions of the SSRD. After the unconditional withdrawal of the revision application, there can be no hearing of the appeals on merits, as directed by the SSRD.
(4) This Court may issue a Writ of Prohibition restraining the Deputy Collector Page 15 of 53 HC-NIC Page 15 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT from dealing with the appeals filed by respondent No.5 against the mutation entries posted pursuant to the very orders of the Deputy Collector and Collector that have attained finality after the unconditional withdrawal of the revision application. Respondent No.5 has adopted this method to rake up issues on merits after the matter is concluded, which cannot be permitted. He has lost his right to agitate the issues raised in the revision application. To get the SSRD to pass the impugned directions is nothing but an ingenious method devised by respondent No.5 to reagitate the matter, in a manner not permitted by law. The Deputy Collector cannot be permitted to go into those issues again and neither can respondent No.5 pursue the said appeals which are without jurisdiction.
(5) Respondent No.5 has filed a civil suit for declaration that he is the owner of the property concerned and the declaration made on oath by him has been obtained fraudulently. He has also claimed possession and sought a Page 16 of 53 HC-NIC Page 16 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT permanent injunction. The application at Ex.5 for the grant of an interim injunction has been rejected. In the Appeal from Order pending before the District Court, no relief has been granted to respondent No.5 so far. The rights and title of parties will be decided by the Civil Court, therefore, till such time as the competent Court does not finally determine such issues, the Deputy Collector may be restrained from dealing with the appeals pending before him.
17. In support of the above submissions, reliance has been placed upon a judgment of the Supreme Court in the case of M/s.East India Commercial Co. Ltd. Calcutta and another v. Collector of Customs, Calcutta - AIR 1962 SC 1893(1), wherein it is held as below: "26. The first question is whether the petition filed by the appellants under Art. 226 of the Constitution for the issue of a writ in the nature of prohibition is maintainable in the circumstances of the case. A writ of prohibition is an order directed to an inferior Tribunal forbidding Page 17 of 53 HC-NIC Page 17 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise: Mackonochie v. Lord Penzance, 1881 AC 424 and Halsbury's Laws of England, Vol. 2, 3rd Edn."
18. Another judgment relied upon by learned Senior Counsel for the petitioner is that delivered by the Apex Court in the case of Thirumala Tirupati Devasthanams And Another v. Thallappaka Ananthacharyulu And Others - (2003)8 SCC 134, which, according to him, is delivered in facts similar to those obtaining in the present case. The Supreme Court has held as below:
"14. On the basis of the authorities it is clear that the Supreme Court and the High Courts have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior Court or Tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of rules of natural justice, (c) proceeds to act under law which is itself ultra vires or Page 18 of 53 HC-NIC Page 18 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT unconstitutional, or (d) proceeds to act in contravention of fundamental rights. The principles, which govern exercise of such power, must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial disciplines of the highest order has to be exercised whilst issuing such writs. It must be remembered that the writ jurisdiction is original jurisdiction distinct from appellate jurisdiction. An appeal cannot be allowed to be disguised in the form of a writ. In other words, this power cannot be allowed to be used "as a clock of an appeal in disguise".
Lax use of such a power would impair the dignity and integrity of the subordinate Court and could also lead to chaotic consequences. It would undermine the confidence of the subordinate Court. It was not even argued that there was total lack of jurisdiction in the civil Court. It could not be denied that the civil Court, before which the suit was pending, had powers to decide on the maintainability of the suit and to decide on questions of its jurisdiction. The civil Court had jurisdiction to decide whether the suit was barred by Section 14 of the said Act or on principles of res judicata/estoppel. Thus unless there was some very cogent or strong reason the High Court should not have Page 19 of 53 HC-NIC Page 19 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT prevented the Court of competent jurisdiction from deciding these questions. In other words the High Court should not usurp the jurisdiction of the civil Court to decide these questions. In the impugned Judgment no reason, much less a cogent or strong reason, has been given as to why the civil Court could not be allowed to decide these questions....
... ... ...
22. We see no reason to express any opinion on the rival submissions. Were we to express any opinion we would be committing the same mistake that the High Court has committed viz. usurping the jurisdiction of the civil Court to decide these questions. We therefore express no opinion on merits.
... ... ...
24. We are in agreement with the observations of the High Court that grant of Patta to the respondents was a formality in pursuance of the decisions in the earlier round of litigation. It is only if it is held that the appellants suit is maintainable and not barred on principles of res judicata/estoppel that the appellants can be allowed to pursue the appeal. Thus the writ of prohibition preventing the Page 20 of 53 HC-NIC Page 20 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT Revenue Divisional Officer, Tirupati from proceeding with the appeal preferred by the appellants against the order of the Inams Deputy Tahsildar, Chittoor in SR No. 1 of 1995 dated 981995 must continue for the present. Those proceedings shall therefore continue to remain stayed till after the final decision on the preliminary issues. If the preliminary issues are finally answered in favour of the appellants then the writ of prohibition in respect of the appeal shall automatically stand vacated. If however the preliminary issues are finally answered against the appellants the writ of prohibition shall stand confirmed."
(emphasis supplied)
19. On the strength of the above submissions, it is prayed on behalf of the petitioner that the petition be allowed.
20. Mr.Anshin H. Desai, learned Senior Advocate appearing for respondent No.5, the only contesting respondent, without prejudice to the rights and contentions of the said respondent, had initially suggested that, as the petitioner was admittedly not heard by the SSRD before passing the impugned part of the order, the Page 21 of 53 HC-NIC Page 21 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT entire order could be set aside and the SSRD be directed to hear the parties on the withdrawal application and pass a fresh order.
21. This suggestion on the part of learned Senior Counsel Mr.Anshin Desai has been strongly rejected by Mr.R.S.Sanjanwala, learned Senior Advocate for the petitioner on the ground that it would amount to setting aside the order of unconditional withdrawal of the revision application to which the petitioner has no grievance and which respondent No.5 has never challenged at all.
22. Consequently, Mr.Anshin H. Desai, learned Senior Advocate, has proceeded to advance submissions. He has strongly opposed the submissions advanced on behalf of the petitioner and stated that:
(1) Rukhiben, the predecessorininterest of the petitioner, was not a biological daughter of Chakuji, being the daughter of his wife from a previous marriage. Hence, being a stepdaughter, she had no right of inheritance in the property in question.Page 22 of 53
HC-NIC Page 22 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT (2) Respondent No.5 was adopted by Gabhaji and Shakriben, therefore, his name had rightly been mutated in the revenue record as their legal heir.
(3) The petitioner challenged the mutation entries in favour of respondent No.5 after an inordinate delay of eighteen years. This aspect has been noted in the order of the Deputy Collector who has stated that, normally, such a large delay could not have been condoned. However, the appeal of the petitioner was entertained on the basis of the declaration purported to have been made by respondent No.5. The Collector upheld the order of the Deputy Collector, against which respondent No.5 had filed the revision application before the SSRD, which came to be withdrawn.
(4) That the application for the withdrawal of the revision application was made on the ground that civil suits were pending as were the appeals filed by respondent No.5 against the mutation entries, before the Deputy Collector. Page 23 of 53 HC-NIC Page 23 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT The said entries were posted without issuing notice or granting respondent No.5 an opportunity of hearing. These are independent statutory appeals and respondent No.5 has a right to file them. Such statutory appeals cannot be prevented from being heard by a Writ of Prohibition, as prayed for by the petitioner. The legal rights of respondent No.5 cannot be curtailed.
(5) The declaration being relied upon by the petitioner, which forms the basis of the order passed by the Deputy Collector and upheld by the Collector, is a result of threat and coercion as, it was only after a period of nineteen years that the petitioner chose to file a police complaint against respondent No.5. The declaration was made under the threat of the police complaint. After the declaration was made by respondent No.5, the criminal complaint was withdrawn. Respondent No.5 has challenged this declaration in the civil Court, therefore no reliance can be placed upon it.
Page 24 of 53 HC-NIC Page 24 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT (6) A Writ of Prohibition can be issued only in the rarest of rare cases and the present case is not such a case. Such a Writ can only be issued if the authority lacks jurisdiction, if the principles of natural justice are violated or if there is a violation of fundamental rights. In the present case, none of these contingencies is present as the appeal of respondent No.5 is a statutory appeal and the Deputy Collector has the jurisdiction to hear it. The appeal proceedings cannot be preempted in the manner prayed for by the petitioner. The appeals ought to be heard and decided on merits by the Deputy Collector, as directed by the SSRD.
(7) The petitioner has suppressed the fact that civil suits are pending between the parties and a criminal complaint was made by him against respondent No.5, after a period of nineteen years.
23. On the above grounds, it is urged that the petition be rejected.
Page 25 of 53 HC-NIC Page 25 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT
24. In support of the above submissions, learned Senior Counsel for respondent No.5 has placed reliance upon the judgments discussed below.
25. In U.P.Sales Tax Service Association v. Taxation Bar Association, Agra And Others - (1995)5 SCC 716, the Apex Court held as below:
"23. In this case, the respondent Association and the advocates resorted to boycott the Courts on the specious plea of nontransfer of Satti Din, the appellate authority, who seems to be honest and willing to discharge his duties diligently. When the Government stuck to its stand and did not yield to the pressure despite the strike, the Bar Association filed writ petition in the High Court. Question is whether the High Court was justified in entertaining the writ petition and issuing the directions quoted above. The High Court has power to issue a writ of prohibition to prevent a Court or tribunal from proceeding further when the inferior Court or Tribunal
(a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of the rules of natural justice,
(c) proceeds to act under law which is itself ultra vires or unconstitutional, or Page 26 of 53 HC-NIC Page 26 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT
(d) proceeds to act in contravention of the fundamental rights, None of these situations indisputably arises in this case. As noted above, Section 9 of the Act is a complete code in itself for conferment of jurisdiction on the appellate authority, the procedure for dispensation and the power to pass orders thereon. The appellate authority was acting in furtherance thereof. It has, therefore, to be seen whether the High Court was justified in issuing orders restraining the authority from exercising those statutory powers and further to deprive that authority to exercise those powers by transferring the same to any other jurisdiction.
... ... ...
25. The decision in Dwarka Nath v. ITO also is of no assistance to the first respondent.
Though this Court was considering the scope and nature of the jurisdiction of the High Court under Article 226, there is no doubt now as regards the scope of the jurisdiction of the High Courts. However wide its power be, the question is whether a writ or order of prohibition could be issued prohibiting a statutory authority from discharging its statutory functions or transferring those functions to another jurisdiction. Page 27 of 53 HC-NIC Page 27 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT
26. Having given our anxious and careful consideration, we are of the considered view that the High Court does not have the aforesaid power. Exercise of such power generates its rippling effect on the subordinate judiciary and statutory functionaries. On slightest pretext by the aggrieved parties or displeased members of the Bar, by their concerted action they would browbeat the judicial officers or authorities, who would always be deterred from discharging their duties according to law without fear or favour or illwill. Therefore, we hold that writ petition is not maintainable. The impugned orders are clearly and palpably illegal and are accordingly quashed."
26. On the issue regarding nonissuance of notice, learned Senior Counsel for respondent No.5 has relied upon the judgment in the case of The SubDivisional Officer (Compensation Officer) Mirzapur and others v. Raja Srinivasa Prasad Singh reported in AIR 1966 SC 1164, wherein the Supreme Court held as below:
"12. Here the question is not one of reopening the Compensation Roll or the objection case for purposes of making a Page 28 of 53 HC-NIC Page 28 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT correction or for review. The question here is that one of the necessary parties to the objection cases was neither joined nor noticed to appear. The most important party, besides the objector, claiming enhancement of the compensation, was the State which has to pay the enhanced compensation. That party had to be joined to the proceedings under S. 343 and a notice or intimation of the date of the hearing had to be sent as laid down in S. 343. Section 343 prescribes not only the manner of serving notices but lays down that the State Government must be joined. Every Court and tribunal is entitled to reopen a proceeding which has proceeded ex parte, not because a party has failed to appear but because a notice has not been sent to a necessary party. A decision reached behind the back of a necessary party to whom notice must be sent is not binding upon such a party and the Court may in such a case reopen the proceeding to give the party a chance to state its case."
27. In Standard Chartered Bank And Others v. Directorate of Enforcement And Others, reported in (2006)4 SCC 278, the Apex Court held that:
"15. The other set of notices are in respect of the adjudication under Section 50 Page 29 of 53 HC-NIC Page 29 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT of the FERA. Again, it is for the appellants to put forward their objections thereto before the concerned authority and it is for that authority to decide the relevant aspects while deciding to impose or not to impose any penalty on the appellants. The appellants have a right of appeal under Section 52 of the FERA to the Appellate Board and a further right of appeal to the High Court under Section 54 of the FERA. We see no justification for the issue of a writ of prohibition restraining the authority under the FERA from proceeding further with the adjudication. It is for the appellants to put forward their defences, if any available, before the adjudicating authority and pursue it in accordance with law.
... ... ...
25. The prayer for the issue of a writ of prohibition restraining the authorities under the Act from proceeding with the adjudication and the prosecution is essentially based on the constitutional challenge to the relevant provisions of the Act on the ground that they violate Articles 14 and 21 of the Constitution. Once we have held, as the High Court did, that the provisions are constitutional, the basis on which the writ of prohibition is sought for Page 30 of 53 HC-NIC Page 30 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT by the appellants disappears. It is settled by the decisions of this Court that a writ of prohibition will issue to prevent a Tribunal or Authority from proceeding further when the Authority proceeds to act without or in excess of jurisdiction; proceeds to act in violation of the rules of natural justice; or proceeds to act under a law which is itself ultra vires or unconstitutional. Since the basis of the claim for the relief is found not to exist, the High Court rightly refused the prayer for the issue of a writ of prohibition restraining the Authorities from continuing the proceedings pursuant to the notices issued. As indicated by this Court in State of Uttar Pradesh v. Brahm Datt Sharma ((1987) 2 SCC 179) when a show cause notice is issued under statutory provision calling upon the person concerned to show cause, ordinarily that person must place his case before the Authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. On the facts of this case, it cannot be said that these notices are palpably without authority of law. In that situation, the appellants cannot successfully challenge the refusal by the High Court of the writs of Page 31 of 53 HC-NIC Page 31 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT prohibition prayed for by them."
28. On the aspect that revenue entries are mutated for fiscal purposes and do not confer any right or title, learned Senior Counsel for respondent No.5 has relied upon the case of Chhimiben Wd/o. Hirabhai Gopalbhai And Ors. v. State of Gujarat And Ors. 2006(3) GLR 2455, wherein this Court has held as below:
"4. It is by now well settled that the entry in the revenue record neither confers any additional right over the property nor takes away or alters the rights in the property, which otherwise exist as per the provisions of the Transfer of Properties Act or other law and such entries are having value for fiscal purposes. It appears that there is delay on the part of the respondent No. 5 in challenging the decision of the authority mutating the entry. However, the contentions on the part of respondent No. 5 are two fold; one is that the mandatory procedure is not followed and another is that the Will is a fraud. Whether the mandatory procedure is followed or not and whether the Will is genuine or not is an aspect, which can conveniently be examined in the proceedings of the Civil Suit which Page 32 of 53 HC-NIC Page 32 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT has been filed by the petitioners being Civil Suit No. 664 of 2005. Therefore, until such finding is arrived at in the Suit that the mandatory procedure is not followed or that the Will is not genuine, the entry can be allowed to be continued on revenue record subject to the outcome of the proceedings of Regular Civil Suit No. 664/05. In the event, the respondent No. 5 succeeds in the Suit, appropriate recording will have to be made in the revenue record and the rights of the parties may prevail accordingly. Until such declaration is given by the Civil Court that the Will is not genuine or that the mandatory procedure is not followed, it was not required for the State Government to give a declaration that the entry was a nullity and even the subsequent entry which was not subject matter of the proceedings of the revision could not be cancelled. No further discussion is required in this regard since the position of the law is settled. The reference may be given to the decision of this Court in the case of Jhaverbhai Savjibhai Patel through P.A.O. Holder Ashok J. Patel Vs. Kanchanben Nathubhai Patel & Ors. reported at 2005(3) GLR 2233. Of course, it was a case of a Registered Sale Deed, but in the present case, since the Page 33 of 53 HC-NIC Page 33 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT entry was based on the Will and it is continued on record for a long time and the Civil Court may also be required to examine as to whether probate was a mandatory requirement in a Will executed by Hindu when the property is not situated in Bombay, Madras or Calcutta, the same analogy as it was observed in case of Jhaverbhai Savjibhai Patel(Supra) can be made applicable even in the facts of the present case."
(emphasis supplied)
29. To buttress the same point regarding revenue entries being mutated for fiscal purposes only, without conferring title to the property, reference has been made to the observations of this Court in Paragraph 21 of the judgment dated 02.02.2017 rendered in Special Civil Application No.11694 of 2016 in the case of Urmilbhai Gandabhai Patel v. State of Gujarat & Ors., which need not be reproduced as they reflect the settled position of law in this regard.
30. In rejoinder to the submissions advanced on behalf of respondent No.5, Mr.R.S.Sanjanwala, learned Senior Counsel for the petitioner, apart from reiterating his earlier submissions, has Page 34 of 53 HC-NIC Page 34 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT contended that much has been said on behalf of respondent No.5, that is beyond the scope and ambit of the present petition in which the issue is very limited. The merits of the case cannot be argued before this Court as they are not the subjectmatter of the impugned order and civil suits are pending wherein the rights of parties will be finally decided by the competent Court.
31. It is further submitted by learned Senior Counsel for the petitioner that this Court can suitably mould the relief, as required by the facts and circumstances of the case. Till such time as the Civil Court finally determines the rights, title and interest of the parties, the Deputy Collector may be restrained from hearing the appeals. It is submitted that the Supreme Court, in similar circumstances described in M/s.East India Commercial Co. Ltd. Calcutta and another v. Collector of Customs, Calcutta (supra), issued such directions which may be followed by this Court as well.
32. Learned Senior Counsel for the petitioner has Page 35 of 53 HC-NIC Page 35 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT further submitted that when, as per the settled position of law, it is clear that revenue entries are mutated only for fiscal purposes and confer no right or title to property, there is all the more reason to await the final decision of the Civil Court on such matters and it may be so directed by this Court.
33. Mr.Manav A. Mehta, learned advocate for respondents Nos.6 to 12 in Special Civil Application No.20096 of 2016, has supported the stand of the petitioner. Ms.Amita Shah, learned Assistant Government Pleader appearing for respondents Nos.1 to 4 in each petition, has supported the impugned order passed by the SSRD.
34. In the background of the above factual and legal submissions, this Court has heard learned counsel for the respective parties at length and thoughtfully considered the submissions advanced by them.
35. As already stated earlier, the respective rights, title and interest of the parties will be finally determined by the competent Court in Page 36 of 53 HC-NIC Page 36 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT the civil suits pending between them. Moreover, these aspects are not relevant for the decision of the legal issues involved in the present petitions. Issues regarding rights and title of parties were obviously not involved before the SSRD as well, as the revision was filed by respondent No.5 against the orders of the revenue authorities setting aside certain mutation entries.
36. Though learned Senior Counsel for respondent No.5 has raised questions regarding the right of Rukhiben, the predecessorininterest of the petitioner to inherit property, issues regarding inheritance are best left for the determination of the Civil Court. Similarly, the issue regarding whether respondent No.5 was the adopted son of Gabhaji and Shakriben, from whom he seeks to derive title and whether the declaration made by him is a result of threat or force, are also matters with which the Civil Court is seized and is competent to decide. Submissions of parties regarding issues that are pending adjudication before the Civil Court Page 37 of 53 HC-NIC Page 37 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT cannot, therefore, be dealt with on merits by this Court.
37. This brings us to the core issue involved in the petitions, which is the legality and validity of the impugned portion of the order of the SSRD, whereby, after permitting the unconditional withdrawal of the revision application filed by respondent No.5, the SSRD has proceeded further by issuing directions to the Deputy Collector to hear the appeals on merits after granting respondent No.5 an opportunity of hearing.
38. Having thoughtfully considered the impugned directions in the factual and legal context of the matter this Court is of the view that, first and foremost, after permitting the unconditional withdrawal of the revision application, which part of the order is not under challenge, the SSRD could not have proceeded to issue any further directions to hear the appeals on merits. An unconditional withdrawal cannot have any conditions attached to it. Respondent No.5 may have raised certain issues in the Page 38 of 53 HC-NIC Page 38 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT application for withdrawal, such as the pendency of the civil suits and the appeals filed by him, but once the SSRD permits only unconditional withdrawal, no further directions can be issued, least of all directing the Deputy Collector to hear and decide the appeals on merits. This part of the order of the SSRD is, therefore, legally unsustainable.
39. Even assuming that the SSRD could have issued such directions after permitting only unconditional withdrawal, the impugned directions, though seemingly innocuous, have the disastrous effect of unravelling the entire case and reopening concluded issues. It is an order that would have farreaching consequences and result in a fresh round of litigation upon issues that have attained finality. Such a situation is unwarranted in law.
40. It has to be kept in mind that what was under
challenge before the SSRD were the orders of the Deputy Collector dated 30.03.2012 and of the Collector dated 12.11.2013, whereby the mutation Page 39 of 53 HC-NIC Page 39 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT entries in favour of respondent No.5 have been set aside on the basis of the declaration made by the said respondent on oath, stating that he is not a legal heir of Gabhaji and the mutation entry in his favour has been wrongly posted in the revenue record. Respondent No.5 has further stated that he is neither the owner, nor the occupant, of the property in question. The said respondent has also made a positive assertion that it is the petitioner who is the owner of the property in question. In the said declaration, respondent No.5 describes himself as Amratji Chanduji and not Amrat Gabhaji. The Deputy Collector has set aside mutation entries Nos.1643 and 1644 posted in favour of respondent No.5 on the basis of this declaration. The order of the Deputy Collector has been confirmed by the Collector and both the above orders were challenged by respondent No.5 in the revision application, which has been permitted to be withdrawn, unconditionally. Once there is an order of unconditional withdrawal of the revision application, which order has not been Page 40 of 53 HC-NIC Page 40 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT challenged by respondent No.5, the orders of the Deputy Collector and Collector would attain finality. The mutation entries posted as a consequence of such orders cannot remain the subjectmatter of appeal thereafter.
41. It is an admitted position that the application for withdrawal filed by respondent No.5 was not served upon the petitioner, who has admittedly not been heard before the passing of the impugned part of the order by the SSRD. The petitioner is not aggrieved by that part of the order directing unconditional withdrawal. Neither has respondent No.5 raised any grievance about this part of the order, which is now final. The challenge by the petitioner is to the latter part of the order that directs the Deputy Collector (East) to decide the appeals pending before him on merits while following the principles of natural justice, after permitting the unconditional withdrawal of the revision application.
42. As already stated earlier, this part of the Page 41 of 53 HC-NIC Page 41 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT order of the SSRD, is unsustainable in law as, once the revision is permitted to be withdrawn unconditionally, no further directions could have been issued. In doing so, the SSRD has exceeded the jurisdiction vested in her by issuing further directions regarding the hearing of the appeals on merits. Apart from being contradictory and creating an anomalous and unprecedented situation, there is a patent lack of jurisdiction in the SSRD in issuing the impugned directions after permitting unconditional withdrawal.
43. It cannot be overlooked that the appeals pending before the Deputy Collector (East) are those filed by respondent No.5 against the very mutation entries that give effect to the orders of the Deputy Collector and Collector, the challenge to which has been unconditionally withdrawn. When the challenge to the orders has been withdrawn, they are now final. The entries giving effect to those orders are consequential in nature and have been made pursuant to the said orders. The main challenge to the orders Page 42 of 53 HC-NIC Page 42 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT having been unconditionally withdrawn, there cannot remain any further challenge to the entries mutated as a consequence of those orders. Under the circumstances, the impugned directions issued by the SSRD are lacking in jurisdiction apart from having been issued in violation of the principles of natural justice, as the petitioner was never heard. The SSRD failed to consider that the issuance of the impugned directions would amount to the re opening of issues that have attained finality by her own order of unconditional withdrawal and would result in opening another avenue for respondent No.5 to challenge indirectly, the very same issues to which he has unconditionally withdrawn his challenge. The impugned directions amount to compelling the Deputy Collector to act beyond his jurisdiction as, if he were to follow the said directions as he is bound to, it would amount to his adjudicating upon his own order and that of the Collector, his superior authority, that have attained finality after the challenge to them stood withdrawn. The effect of Page 43 of 53 HC-NIC Page 43 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT the impugned directions would give rise to a legally impermissible situation that would result in a cleverly crafted abuse of the process of law, which is required to be curtailed.
44. Much has been stated by learned Senior Counsel for respondent No.5 regarding the statutory nature of the appeals filed by the said respondent. There can be no doubt that the statute provides for the filing of appeals. However, in the peculiar circumstances of this case, it is clear that the right given by the statute would be used, or rather misused, by the adjudication of such appeals that would open up another round of litigation for respondent No.5 on issues concluded after the withdrawal of his challenge. Such a manipulation of the statute cannot be permitted by the Court as it would send a wrong signal to litigants and encourage such clever and ingenious methods designed to reagitate concluded issues indirectly, in an attempt to succeed obliquely in a litigation that has not yielded satisfactory results for Page 44 of 53 HC-NIC Page 44 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT such litigant, even after giving up the challenge.
45. Another legal defect in the impugned portion of the order of the SSRD is that directions have been straightaway issued upon the Deputy Collector (East) to hear the appeals on merits, after granting an opportunity of hearing depriving the petitioner of his legal right to raise the issue of the locus standi of respondent No.5 and/or the aspect of delay. The impugned directions, apart from being illegal and violative of the principles of natural justice, are unfair and unjust as well.
46. Learned Senior Counsel for respondent No.5 has stated that the declaration made by respondent No.5 is under challenge in Regular Civil Suit Nos.773 of 2012 and 778 of 2012. That being so, until the Civil Court holds that the declaration has been fraudulently obtained, its authenticity cannot be doubted at this stage. It is on the basis of this declaration that the Deputy Collector and Collector have passed their Page 45 of 53 HC-NIC Page 45 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT respective orders, setting aside the mutation entries in favour of respondent No.5.
47. It is a settled position of law that revenue entries are mutated for fiscal purposes and do not confer right, title or interest upon the property in respect of which they are posted. When issues regarding the right of inheritance and title to the property are pending adjudication before the Civil Court, the revenue entries under challenge by respondent No.5 in the appeals would be subject to the final outcome of the Civil Suits. Until such final determination upon these issues is arrived at by the Civil Court, a second round of litigation to reagitate concluded issues regarding mutation entries cannot be permitted. No litigation would ever end if such attempts to reopen concluded issues are not thwarted by the Court. If the Civil Court finds that respondent No.5 has a right in the property, the necessary corrections in the revenue record are bound to be made by the authorities. No prejudice would occur to respondent No.5 till such time as the rights of Page 46 of 53 HC-NIC Page 46 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT parties are finally decided by the Civil Court as revenue entries cannot take away or alter an existing right or confer any additional right over the property.
48. The principles of law enunciated by the Supreme Court on the issuance of a Writ of Prohibition, as reproduced in the judgments extracted hereinabove, are wellcelebrated and there can be no dispute regarding them. Such a Writ is to be issued after careful and cautious consideration and not as a matter of course. One of the contingencies where the High Court is empowered to issue a Writ of Prohibition is when the inferior Court or Tribunal proceeds to act without, or in excess of jurisdiction vested in it. In the present case, the Civil Court is not involved as the impugned directions have been issued to the Deputy Collector. Under the impugned directions of the SSRD, the Deputy Collector (East) would be compelled to act without jurisdiction or, in excess of jurisdiction vested in him by the statute, by hearing and deciding appeals against the Page 47 of 53 HC-NIC Page 47 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT mutation entries consequential to his own order and that of his superior authority (the Collector), both of which have attained finality. This would go against the very intention of the statute. It would also amount to an unprecedented situation that is required to be prevented by the issuance of a Writ of Prohibition. In this view of the matter, the Court is confronted with a rare and unusual situation that can be set right only by the issuance of a Writ of Prohibition, moulded to suit the facts of the present case.
49. In Thirumala Tirupati Devasthanams And Another v. Thallappaka Ananthacharyulu And Others (supra), the facts before the Supreme Court were almost similar to those obtaining in the present case. In the said case, the land in question was declared as Inam Land in a Ryotwari Village and it was not held by an institution. Thirumala Tirupati Devasthanam (TTD) challenged the action before the Deputy Tehsildar. After losing before the authorities, the matter reached the Apex Court in the first round of Page 48 of 53 HC-NIC Page 48 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT litigation. After the dismissal of the review petition before the Supreme Court, Tallapaka People filed an application before the Tehsildar for the grant of a "Patta". The said action was challenged by TTD by filing an appeal before the Revenue Divisional Officer and also by filing Civil Suits before the Competent Court. The Tallapaka People challenged the action of TTD in filing such appeal before the High Court, by seeking a Writ of Prohibition. The said writ was also sought against the Civil Court. The High Court issued a Writ of Prohibition and also issued directions. The issuance of a Writ of Prohibition was challenged before the Apex Court by TTD. The Apex Court considered it proper to continue the Writ of Prohibition against the Revenue Divisional Officer and modified the order of the High Court by requesting the Civil Court to decide the question at issue in the judgment. In the present case as well, the mutation entry of respondent No.5 was challenged by the present petitioner before the Deputy Collector. After the declaration by respondent Page 49 of 53 HC-NIC Page 49 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT No.5, affirmed on 15.09.2011, the Deputy Collector passed the order dated 30.03.2012, in RTS Appeal No.1356/2011, setting aside the mutation entries in favour of respondent No.5. The said order was challenged by respondent No.5 by filing Revision Application No.249/2012 before the Collector who, by his order dated 12.11.2013, confirmed the order of the Deputy Collector. Respondent No.5, thereafter, filed a revision application before the SSRD in which no injunction was granted, in the year 2015. by the order dated 06.10.2016, the said revision application has been unconditionally withdrawn and thus, the orders of the Deputy Collector and Collector have attained finality. Before he withdrew the revision application before the SSRD, respondent No.5 filed RTS Appeals Nos.182 and 185 of 2016 before the Deputy Collector, challenging the entries made pursuant to the very orders of the Deputy Collector and Collector that have attained finality.
50. Hence, in view of the facts of the present case and the law laid down by the Apex Court in the Page 50 of 53 HC-NIC Page 50 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT case of Thirumala Tirupati Devasthanams And Another v. Thallappaka Ananthacharyulu And Others (supra), which squarely covers the present case, a Writ of Prohibition is required to be issued against the Deputy Collector (East), restraining him from hearing RTS Appeals Nos.182 of 2016 and 185 of 2016, till such time as the rights and title of the parties are determined by the Civil Court. The revenue entries impugned in the abovementioned appeals shall be subject to the decision of the Civil Suits.
51. Insofar as the submission regarding the non disclosure of the pending Civil Suits by the petitioner is concerned, this Court does not consider it to be a suppression of material facts as the petitions are directed against the impugned order of the SSRD, which is not on the merits of the case. The nondisclosure of the criminal complaint filed by the petitioner against respondent No.5 is immaterial as this aspect is not relevant to the decision of the present petition.
Page 51 of 53 HC-NIC Page 51 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT
52. Having considered the matter from all possible angles and for the aforestated reasons, this Court considers it appropriate to pass the following order:
(i) The impugned orders passed by the Special Secretary (Appeals), Revenue Department, dated 06.10.2016, in Revision Applications Nos.
HKP/AMD/65/2014, HKP/AMD/66/2014, HKP/AMD/69/2014, and HKP/AMD/80/2014, are quashed and set aside to the extent that they direct the Deputy Collector (East) to hear the appeals pending before him on merits after granting an opportunity of hearing.
(ii) The Deputy Collector (East) is restrained from adjudicating upon RTS Appeals Nos.182/2016, 183/2016, 184/2016 and 185/2016, filed by respondent No.5, which are pending before him, till the final determination of the right, title and interest of the parties in the Civil Suits filed by respondent No.5, being Regular Civil Suits Nos.773 of 2012 and 778 of 2012.
53. The petitions are allowed in the above terms.
Rule is made absolute, accordingly, in each petition. Parties shall bear their own costs.
(SMT. ABHILASHA KUMARI, J.) Mr.Anshin Desai, learned Senior Advocate for Page 52 of 53 HC-NIC Page 52 of 53 Created On Wed Mar 22 00:24:21 IST 2017 C/SCA/20096/2016 CAV JUDGMENT respondent No.5 has made a request that the operation of this judgment be stayed for a period of four weeks. The request is opposed by Mr.R.S.Sanjanwala, learned Senior Advocate for the petitioners.
In view of the reasons stated in the judgment, the request is declined.
(SMT. ABHILASHA KUMARI, J.) sunil Page 53 of 53 HC-NIC Page 53 of 53 Created On Wed Mar 22 00:24:21 IST 2017