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2003 DIGILAW 137 (GUJ)

Amrutlal Kalidas Patel v. Deputy Collector

2003-03-06

C.K.BUCH

body2003
JUDGMENT : C.K. Buch, J. 1. to 4. xxx xxx xxx. 5. xxx xxx xxx. 6. The land has been divided into 12 sub plots and the petitioners are the purchasers of the said sub-plots under sales deed executed and registered on 30-9-1989. Present petitioners were owning and occupying their respective subplots since 30-9-1989 and they were not even asked to appear before the Deputy Collector when the alleged jurisdiction vested with the Deputy Collector was exercised in the light of the provisions of said Fragmentation Act. When the petitioners came to know about the colourable exercise of powers by the Deputy Collector and the fact that the day on which the notice for cancellation of mutation entries were issued in the year 1996, the land in question was no more an agricultural land and was part of the T.P. Scheme. The Deputy Collector had no jurisdiction either to initiate the proceedings or to pass any order in exercise of the alleged jurisdiction vested with him for the so called violation of Sections 7 and/or 8 of the Fragmentation Act. 7. Mr. Kotak ld. AGP has pointed out that in the present case, alternative remedy was very well available to the petitioners and they could have challenged the order passed by the Deputy Collector and in that contingency, this Court should not exercise the Constitutional Jurisdiction and the petitioners should be asked to relegate to the Appellate Authority for appropriate relief. The other alternative submission made by Mr. Kotak is that, this matter may be remanded to the authority, viz. the Deputy Collector directing him to afford an opportunity of being heard to the petitioners by quashing the order under challenge for deciding the matter afresh. But no writ or order as prayed for should be issued. 8. Mr. Ravani ld. counsel appearing for the petitioners has rightly quoted the relevant part of the order passed by this Court while admitting this petition, after hearing the parties, on 23-7-2001. It is submitted by Mr. Ravani that on the date of hearing, the point of availability of alternative remedy was raised but even then, this Court has admitted the petition in the light of the totality of facts and circumstances emerging from the petition and the nature of the orders passed by the Deputy Collector which is under challenge in this petition. Ravani that on the date of hearing, the point of availability of alternative remedy was raised but even then, this Court has admitted the petition in the light of the totality of facts and circumstances emerging from the petition and the nature of the orders passed by the Deputy Collector which is under challenge in this petition. I would like to quote the relevant part of the order passed by the learned single Judge that "...The petitioners challenge the order dated 16th September 1997 made by the Deputy Collector, Surat under Sections 8 and 9 of the Bombay Prevention of Fragmentation & Consolidation of Holdings Act, 1947. Mr. Surat has submitted that under the impugned order, partition of land made in the year 1984 has been set aside. Since the said partition, the N.A. permission was granted by the concerned authority, the plots of land were purchased by the petitioners by the registered sale deeds and the petitioners, after obtaining proper sanction, have constructed the said lands. Though the names of the petitioners have been mutated in the revenue records, the petitioners have not been afforded an opportunity of hearing. The impugned order has been made 12 years after the land was converted into non-agricultural land and the Act having ceased to operate in respect of the said lands...." 9. Over and above Mr. Ravani has also pointed out the ratio of the decision of this Court in the case of Jailaxmi Estate (M/s) & Anr. v. State of Gujarat & Ors. 1993 (2) GCD 377 (Guj.) and submitted that the prayer as prayed for may be granted and no fruitful purpose would serve if they are relegated to the Deputy Collector, Surat because as per the ratio of this decision, the powers required to be exercised by the authority have not been exercised within a reasonable period of time and in cases where once NA permission is granted by the Collector, Agricultural Lands, the changes and the provisions of the Section 63 of the Fragmentation Act. This decision, of course is in reference to a case of land governed under the scheme of Tenancy Laws. But the fact remains that on the date on which the notice to show-cause was issued even against the original land owners, they were neither owners nor the land was an agricultural land. This decision, of course is in reference to a case of land governed under the scheme of Tenancy Laws. But the fact remains that on the date on which the notice to show-cause was issued even against the original land owners, they were neither owners nor the land was an agricultural land. While granting permission to use the land for NA purpose, the Collector, Surat had, even not refused permission; otherwise the family arrangement on the basis of which earlier mutation entered in the year 1984 must have been come to the notice of the Collector. 10. In short, I accept the contentions of Mr. Ravani that after admitting this petition, by passing a speaking order, the say of the petitioner should not be thrown away on technical ground that some other alternative remedy is available. The dismissal of the petition on the ground of availability of other alternative remedy is a rule of convenience and more so of prudence and that by itself is not a bar on the maintainability of the present petition. It depends on the totality of facts and the nature of other relevant circumstances emerging from the record. 11. xxx xxx xxx. Petition Allowed.