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2013 DIGILAW 487 (GUJ)

RAVINDRABHAI CHHOTABHAI PATEL v. STATE OF GUJARAT

2013-08-07

HARSHA DEVANI

body2013
JUDGMENT : 1. Rule. Mr. Jigar Raval, learned advocate waives service of rule on behalf of respondents No.7 and 8. Ms. Nisha Thakore waives service of rule on behalf of respondents No.1 to 6. Since all the learned advocates for the respective parties have argued the matter at length with the consent of the learned advocates for the respective parties, the matter is finally disposed of by this judgment. 2. This petition is directed against the order dated 5th December, 2012 made by the Principal Secretary, Revenue Department (Appeals) (hereinafter referred to as “the revisional authority”) in Revision No.MVV/HKP/VDD/45/2008 whereby the order dated 15th May, 2008 made by the Collector, Vadodara has been quashed and set aside and Mutation Entry No.1796 in respect of land bearing Revenue Survey No.141/2 of mauje Nagarwada, taluka Vadodara has been confirmed. 3. Land bearing Survey No.141/2 of village Nagarwada, taluka and district Vadodara (hereinafter referred to as “the subject land”) came to be purchased by the petitioner under a registered sale deed dated 31st July, 2001. In respect to disputes relating to the said land, Special Civil Suit No.1044/2001 and Regular Civil Suit No.689/2001 came to be instituted. In the said suits, more particularly, Regular Civil Suit No.689/2001, compromise terms were drawn on 20th March, 2003 and a compromise decree dated 21st March, 2003 came to be passed in terms thereof. The compromise decree, inter alia, was to the effect that the seventh and eighth respondents as well as the petitioner, who were the defendants No.3, 4 and 5 respectively in Regular Civil Suit No.689/2001 were in joint possession of the subject land and shall have development rights, whereas the ownership of the subject land was of the seventh respondent (defendant No.3 in the suit) alone. 4. It is the case of the petitioner that on 22nd March, 2003, the seventh respondent – Mukesh Jamnadas Shah applied for non-agricultural use permission declaring on affidavit that the subject land was owned by him and in his possession and suppressing the fact that the land was in the joint possession of the petitioner and the seventh and eighth respondents. Pursuant to the said application, the Collector, Vadodara, on 30th June, 2003 granted N.A. permission in the name of the seventh respondent alone. Pursuant to the said application, the Collector, Vadodara, on 30th June, 2003 granted N.A. permission in the name of the seventh respondent alone. Subsequently, on 1st November, 2003, Mutation Entry No.1752 came to be posted in the revenue record recording the compromise dated 21st March, 2003, more particularly, the joint possession of the petitioner and the seventh and eight respondents. The said mutation entry came to be certified on 4th December, 2003. It is the case of the petitioner that fraudulently and behind the back of the petitioner, the seventh respondent interpolated, fabricated and concocted another Mutation Entry No.1752, which was contrary to the above referred compromise decree. By the said mutation entry, it was recorded that both the ownership and possession of the subject land is of the seventh respondent and thereby, the fact of joint possession of the subject land of the petitioner and the eighth respondent was removed. 5. On 3rd July, 2004, the petitioner had granted power of attorney to the eighth respondent – Upendrasinh Pratapsinh Gohil, inter alia, for the purpose of developing the subject land and signing/executing the documents in favour of third parties, viz., the purchasers of tenements/flats/shops/offices constructed on the subject land. Such power of attorney was granted in view of the fact that the petitioner was also one of the partners in the partnership firm putting up the construction. According to the petitioner, by virtue of the said power of attorney, the petitioner had not given any authority to transact his rights qua joint possession on the land which he had got in pursuance of the compromise decree. Subsequently, on 4th November, 2004, the petitioner through his advocate addressed a notice to his power of attorney, viz. the eighth respondent and cancelled the power of attorney. Despite the aforesaid position, on 7th December, 2004, the eighth respondent acting as power of attorney holder of the petitioner, fraudulently and in collusion with the seventh respondent, created a fraudulent understanding agreement dated 7th December, 2004 which was signed by the eighth respondent as holder of power of attorney of the petitioner whereby he relinquished the petitioner’s rights in respect of the subject land, particularly, the joint possessory rights vested in the petitioner in terms of the compromise decree. The eighth respondent – Upendrasinh Pratapsinh Gohil – who also claims to be the power of attorney thereafter approached the revenue authorities for making corresponding mutation entry on the basis of the above agreement on 10th December, 2004. Pursuant to the said application, notice under section 135D of the Bombay Land Revenue Code, 1879 (hereinafter referred to as “the Code”) came to be issued and on the very same day, that is, on 10th December, 2004, the eighth respondent as power of attorney holder of the petitioner accepted service of the said notice. On the basis of such service to the power of attorney holder and without effecting service of notice on the petitioner, on 11th January, 2005, Mutation Entry No.1796 came to be certified by the Mamlatdar, Vadodara city. Prior thereto, apprehending misuse of the power of attorney by the eighth respondent, the petitioner out of abundant caution on 17th/18th December, 2004 published a public notice declaring that the power of attorney in favour of the eighth respondent was cancelled on 4th November, 2004. 6. Upon coming to know of the aforesaid collusion and fraud perpetrated by the seventh and eighth respondents, the petitioner initiated the following proceedings: (i) Civil proceedings by filing Special Civil Suit No. 295/2005; (ii) R.T.S. proceedings registered as R.T.S. Delay Application No. 08/2005; (iii) Revision No.08/2009, challenging grant of N.A. permission by Collector vide order dated 30/06/2003; and (iv) Criminal Proceedings by filing complaint, registered as Inquiry Case No.514/05. 7. The present case pertains to the RTS proceedings challenging Mutation Entry No.1796. The petitioner, upon coming to know of Mutation Entry No.1796 which came to be certified on 11th January, 2005, challenged the same by preferring RTS/Delay/Appeal No.8/2005. By an order dated 29th September, 2007, the Deputy Collector, Vadodara, partly allowed the appeal whereby he set aside the mutation entry and remanded the matter to the Mamlatdar to decide the same afresh. Against the said order, the seventh and eighth respondents went in revision before the Collector, Vadodara, who by an order dated 15th May, 2008 rejected the revision application. The seventh and eighth respondents went in further revision before the revisional authority. The revision came to be admitted on 28th November, 2008. No interim relief was granted against the orders passed by the Deputy Collector and the Collector. The seventh and eighth respondents went in further revision before the revisional authority. The revision came to be admitted on 28th November, 2008. No interim relief was granted against the orders passed by the Deputy Collector and the Collector. In the absence of any interim relief/stay, the petitioner requested the Mamlatdar to hear and decide the remand case pursuant to the order of remand made by the Deputy Collector. However, the Mamlatdar by an order dated 25th November, 2011 closed the proceedings on the ground that Revision No.45/2008 was pending before the Principal Secretary. The petitioner challenged the order passed by the Mamlatdar before the Deputy Collector who allowed the appeal vide order dated 5th April, 2012 and remanded the matter to the Mamlatdar directing him to hear and decide the remand case as no stay had been granted by the Principal Secretary. Pursuant thereto, the Mamlatdar, after hearing both the parties, vide order dated 21st May, 2012 cancelled Mutation Entry No.1796 with a further observation that the parties would be governed by the outcome of Revision No.45/2008 pending before the Principal Secretary. 8. By the impugned order dated 5th/6th December, 2012, the revision came to be partly allowed by setting aside the order dated 29th September, 2007 passed by the Deputy Collector as well as the order dated 15th May, 2008 passed by the Collector with a further observation that Mutation Entry No.1796 is restored subject to the multiple civil suits and that the said decision shall be subject to the orders that may be passed by the Civil Court/High Court. The revisional authority also observed that the order dated 21st May, 2012 of the Mamlatdar though not challenged, was not legal. Being aggrieved, the petitioner has filed the present petition. 9. Mr. Mihir Joshi, senior advocate, learned counsel for the petitioner assailed the impugned order by submitting that both the Deputy Collector as well as the Collector had held that the certification of the impugned mutation entry without service of notice under section 135D to the petitioner was not in accordance with law and had, therefore, remanded the matter to the Mamlatdar to decide the same afresh. It was submitted that the revisional authority has held that service to the power of attorney holder is equal to service to the principal and has accordingly set aside the orders passed by the Collector and the Deputy Collector. It was submitted that the revisional authority has held that service to the power of attorney holder is equal to service to the principal and has accordingly set aside the orders passed by the Collector and the Deputy Collector. Attention was invited to the provisions of section 135D of the Code to submit that the same lays down the procedure which is required to be followed while certifying a mutation entry. Under section 135C of the Code, acquisition of rights are to be reported and pursuant thereto, the procedure under section 135D is required to be followed prior to certifying the entry. Therefore, the acquisition of rights would be in terms of the last undisputed position, whereafter the matter may be subject to the order of the civil court. Attention was invited to the notice under section 135D of the Code (Annexure ‘I’ to the petition) to point out that the power of attorney holder has signed the same on behalf of the petitioner. It was pointed out that the last column of the Village Form No.6 in respect of the impugned mutation entry does not bear any endorsement of service of notice under section 135D of the Code. It was submitted that resort can be made to section 135C of the Code by a person who acquires a right. The said section does not contemplate extinguishment of a right as has been done in the present case. Referring to section 135D of the Code, it was submitted that the same requires that all interested persons should be given written intimation about the making of the entry in the register of mutation, whereas in the present case, there is no due compliance with the provisions of said section. 9.1. Reference was made to section 190 of the Code which provides that every summons shall be in writing, in duplicate, and shall state the purpose for which it is issued, and shall be signed by the officer issuing it and if he have a seal shall also bear his seal; and shall be served by tendering or delivering a copy of it to the person summoned or, if he cannot be found, by affixing a copy of it to some conspicuous part of his usual residence. It was submitted that thus the summons is required to be issued to the interested person and has to be served in the manner provided under section 190 of the Code. Attention was invited to section 191 of the Code which makes provision for the mode of serving notice and lays down that every notice under the Act, unless it is expressly provided, shall be served either by tendering or delivering a copy thereof to the person on whom it is to be served or to his agent, if he have any, or by affixing a copy thereof to some conspicuous place on the land, if any, to which such notice refers. It was submitted that a power of attorney holder cannot be considered to be an agent for the purpose of section 191 of the Code because such agent has to be an agent for the purpose of service of notice. It was urged that, therefore, section 191 talks of agent who is authorised to accept service of notice and cannot be interpreted to mean a power of attorney holder. It was further submitted that section 191 of the Code does not say that the obligation under section 135D which requires intimation to be given to all interested parties is done away with. 9.2. Next, it was submitted that acquisition of rights which can be recognised under section 135C of the Code has to be lawful in a manner known to law since it relates to an immovable property, which has to be by way of a registered document. In the present case, merely on the basis of a fraudulent agreement, that too, which was signed only by the power of attorney, the mutation entry in question has been made. Under the circumstances, the revisional authority was clearly incorrect in saying that notice to power of attorney is service of notice to the principal. It was accordingly urged that the impugned order being contrary to the provisions of the Bombay Land Revenue Code, warrants interference and is required to be quashed and set aside. 10. Vehemently opposing the petition, Mr. M.C. Bhatt, learned senior advocate submitted that the seventh respondent as a power of attorney is an agent of the petitioner and that the same would be governed by the provisions of the Contract Act as the relations between the principal and agent are governed by the said Act. 10. Vehemently opposing the petition, Mr. M.C. Bhatt, learned senior advocate submitted that the seventh respondent as a power of attorney is an agent of the petitioner and that the same would be governed by the provisions of the Contract Act as the relations between the principal and agent are governed by the said Act. Referring to section 191 of the Code, it was submitted that the same shows how a person can be served and also says that such person can be served directly or through his agent. It was submitted that a power of attorney holder is an agent of the principal and therefore, service to the power of attorney holder is due service under section 135D of the Code. It was submitted that the petitioner has suppressed material facts from this court and has only produced papers which are convenient to the petitioner but certain important papers have been intentionally withheld from this court. It was pointed out that the petitioner has produced the judgment delivered by this court on 17th April, 2006 in Special Civil Application 7714 of 2006 but had intentionally not produced the orders passed by the courts below that had given rise to the said writ petition. It was submitted that the trial court while deciding the application Exhibit-5 has specifically observed that the present petitioner who was the plaintiff in the said suit has suppressed material facts from the court. It was urged that the trial court has prima facie not believed that the notice dated 4th November, 2004 was ever served by the petitioner’s advocate. That the court had also observed that the registered A.D. slip was dated 17th December, 2004 and thus the notice dated 17th December, 2004 was sought to be ante-dated as 4th November, 2004. It was contended that in view of the observations made by the trial court against the petitioner in respect of his conduct in a matter touching the very subject matter of this petition, the petitioner has disentitled himself from invoking the constitutional jurisdiction of this court under Articles 226 and 227 of the Constitution of India. 10.1 Next it was submitted that the petitioner was duly served with the notice under section 135D of the Code before revocation of the power of attorney through the power of attorney holder. 10.1 Next it was submitted that the petitioner was duly served with the notice under section 135D of the Code before revocation of the power of attorney through the power of attorney holder. It was submitted that the fact regarding conferring of power by the petitioner on his power of attorney holder is not in dispute and the record of rights proceedings were already over before the alleged notice for revocation of power of attorney was issued by the petitioner. It was urged that only with a view to make a false claim, the notice issued by the petitioner is sought to be ante-dated and as such this court surely would not be inclined to exercise writ jurisdiction in favour of the petitioner who has tried to fabricate the record produced before this court. Inviting attention to the impugned order it was submitted that the revisional authority has specifically observed therein that once an entry is certified and if any litigation is instituted subsequent to such certification, then in that case the entry can be modified as per the final decision of the civil litigation but during the pendency of the litigation, the entry cannot be cancelled or modified. It was further submitted that in the interregnum, third party rights have intervened and as such if the impugned entry is disturbed, it is likely to cause irreparable loss and hardship not only to the respondents but also to more than a hundred persons who are allottees of either residential or commercial premises. In conclusion, it was submitted that the impugned order passed by the revisional authority is absolutely just, legal and proper and no case has been made out for exercise of extraordinary jurisdiction of this court under Articles 226 and 227 of the Constitution of India. 11. In rejoinder, Mr. Joshi for the petitioner submitted that section 191 says that unless it is otherwise expressly provided, every notice is to be served to the person referred to therein. In the present case, the revisional authority has failed to consider that the power of attorney was not authorised to accept such service. 11. In rejoinder, Mr. Joshi for the petitioner submitted that section 191 says that unless it is otherwise expressly provided, every notice is to be served to the person referred to therein. In the present case, the revisional authority has failed to consider that the power of attorney was not authorised to accept such service. Reference was made to provisions of rule 12 of Order V of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”) to submit that taking a cue from the said provision, an agent should be specifically empowered to take service in absence of which, it cannot be said that service had been duly effected. 12. It is in the backdrop of the aforesaid facts and contentions that the validity of the impugned order is required to be examined. A perusal of the impugned order reveals that the revisional authority has held that the Deputy Collector had without any detailed discussion on the merits of the case remanded the matter to the Mamlatdar mainly on the ground that notice under section 135D of the Code had not been served on the petitioner. According to the revisional authority, notice under section 135D had been served upon the power of attorney and as such, it cannot be said that the person who gave the power of attorney was not aware of the same. In other words, the revisional authority has held that service to the power of attorney amounts to service on the principal and has accordingly set aside the order passed by the Collector whereby he (the Collector) had confirmed the order passed by the Deputy Collector. The revisional authority took note of the fact that in respect of the bogus and fabricated compromise, police case/civil cases are pending; the sale deed came to be challenged in Regular Civil Suit No.1044/2001 and Special Civil Suit No.689/2001 wherein a compromise had been arrived at; after the land came to be converted into non-agricultural land, Special Civil Suit No.295/2005 has been filed wherein the Exhibit-5 application has been rejected; the Exhibit-5 order is adverse to the petitioner against which appeal has been preferred before the Presiding Officer at Vadodara and the appeal has been rejected, which shows that the petitioner did not have a prima facie case. The revisional authority observed that the subject land has been converted into non-agricultural land and construction has been put up thereon and rights of third parties have come into existence as most of the houses have been sold, despite which the Mamlatdar and Deputy Collector have decided to cancel Mutation Entry No.1796. The revisional authority was of the view that since the suits in respect of the compromise deed and other deeds were pending, it was not necessary to set aside Mutation Entry No.1796, despite which the Deputy Collector had passed an order of remand and in remand, the Mamlatdar had set aside the mutation entry which does not appear to be proper. According to the revisional authority, once a revenue authority certifies a mutation entry and thereafter there are civil suits and the matter is sub-judice and the case is pending before the higher authority, thereafter, such mutation entry should be continued subject to the decision of the higher authority. The revisional authority was of the opinion that if a mutation entry is cancelled, it has an adverse effect on the pending litigation and as such, the order of the Deputy Collector dated 29th September, 2007 was not proper and the order passed by the Collector confirming the said order was also not proper and that the order passed by the Mamlatdar in remand whereby he has set aside the mutation entry instead of making the same subject to the orders of the civil court was also not proper. Thus, the revisional authority while considering the validity of the order passed by the Collector confirming the order passed by the Deputy Collector has not only set aside the order passed by the Collector, but has also examined the order of the Mamlatdar made in the remand proceedings on merits, and has also commented on the validity of the said order. 13. In the backdrop of the aforesaid facts and contentions, it may be noted that on behalf of the petitioner it has been contended that prior to the making of the impugned mutation entry, the petitioner had revoked the power of attorney executed in favour of the eighth respondent by serving a notice through his advocate and had also issued a public notice in this regard in the newspaper. This stand of the petitioner has been vehemently contested by the learned counsel for the contesting respondents as noted hereinabove. This stand of the petitioner has been vehemently contested by the learned counsel for the contesting respondents as noted hereinabove. Evidently, therefore, the question as to whether the notice for revocation of the power of attorney was issued on 4th November, 2006 or on 17th December, 2006 is a disputed question of fact which cannot be adjudicated in the present petition under Articles 226 and 227 of the Constitution. Under the circumstances, for the present, while considering the validity of the impugned order, this court deems it fit to proceed on the basis of an assumption that the power of attorney had not been revoked at the relevant time, leaving it open to the civil court to decide the same in the proceedings pending before it. 14. The main question that, therefore, arises for consideration is as to whether service of notice under section 135D of the Code to the power of attorney holder amounts to service to the principal. For this purpose it would be necessary to refer to the provisions of section 135D of the Code, which makes provision for “Register of mutations and register of disputed cases”. Sub-section (1) thereof lays down that the village accountant shall enter in a register of mutations every report made to him under section 135C or any intimation of acquisition or transfer of any right of the kind mentioned under section 135C received from the Mamlatdar or a Court of Law. Sub-section (2) thereof which is relevant for the present purpose postulates that whenever a village accountant makes an entry in the register of mutations, he shall at the same time post up a complete copy of the entry in a conspicuous place in the chavdi, and shall give written intimation to all persons appearing from the record of rights or register of mutations to be interested in the mutation, and to any other person whom he has reason to believe to be interested therein. 15. Thus, section 135D of the Code requires the village accountant to give written intimation to all persons appearing from the record of rights or register of mutations to be interested in the mutation. Thus, what is required to be examined is as to whether notice to the power of attorney holder can be said to be due intimation as envisaged under the said section. 16. Thus, what is required to be examined is as to whether notice to the power of attorney holder can be said to be due intimation as envisaged under the said section. 16. At this juncture, reference may be made to rule 12 of Order V of the Code of Civil Procedure, 1908 which reads thus:- “12. Service to be on defendant in person when practicable, or on his agent.-Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.” Thus, rule 12 envisages service on an agent who is duly empowered to accept service. Service on an agent is, therefore, valid only in cases where such agent is empowered to accept service of summons by the defendant. Where a defendant is not served with the summons and/or there is no proper service in accordance with law, the order passed is a nullity or at least is not effective qua the said defendant. In Charan Singh vs. Dewan Singh, AIR 1972 Punjab 288, it was held that if a defendant has not been properly served and an ex parte decree has been made against him, if he can show to the court that he was not duly served, the only course open to the court is to set aside the decree. In the present case, no notice under section 135D of the Code had been issued to the petitioner. The power of attorney holder had appeared before the concerned revenue authority and had accepted service of notice under section 135D. Though, strictly speaking, the provisions of the Code of Civil Procedure would not be applicable to the proceedings under the Bombay Land Revenue Code, however, with a view to answer the question involved in the present case, support can be taken of the provisions of rule 12 of Order V of the CPC. 17. Since rule 12 envisages service on an agent who is duly empowered to accept service, it may be germane to refer to the power of attorney which was executed by the petitioner in favour of the eighth respondent. 17. Since rule 12 envisages service on an agent who is duly empowered to accept service, it may be germane to refer to the power of attorney which was executed by the petitioner in favour of the eighth respondent. On a perusal of the recitals contained in the power of attorney, it appears that the same permits the holder to carry out all acts for executing the sale deed in respect of the subject land and all incidental actions in relation thereto. In the peculiar facts of the present case, under the compromise decree it has been agreed that the subject land would be held in joint possession of the petitioner, the seventh respondent and the eighth respondent, whereas the ownership would vest in the seventh respondent alone. In the light of the above facts, the nature of the power of attorney given to the eighth respondent bears some significance, inasmuch as, the power of attorney has been executed only in respect of executing a sale deed in respect of the ownership of the subject land. The said power of attorney does not speak of authorising the power of attorney holder to take any action in respect of the possessory rights of the petitioner and to waive service of notice in any proceedings in respect thereof. In fact there is no recital in the entire power of attorney authorising the holder to waive service of notice on behalf of the petitioner. 18. It need not be stated that by executing a power of attorney, the principal authorises the power of attorney holder to do certain acts on his behalf. Thus, it is these acts which are stated in the power of attorney executed by the principal that the agent is authorised to do on behalf of the principal. It is only when the agent acts within the authority given to him under the power of attorney that the same is binding upon the principal. Any act not authorised under the power of attorney cannot be said to be an act which is binding upon the principal. In the present case, under the power of attorney executed by the petitioner in favour of the eighth respondent, there is no power to accept service on behalf of the petitioner. Any act not authorised under the power of attorney cannot be said to be an act which is binding upon the principal. In the present case, under the power of attorney executed by the petitioner in favour of the eighth respondent, there is no power to accept service on behalf of the petitioner. Under the circumstances, taking a cue from rule 12 of Order V of the Code of Civil Procedure, it cannot be said that because the power of attorney holder had been served, there was due service of the notice under section 135D of the Code on the petitioner. The Tribunal was, therefore, not justified in holding that service of notice on the power of attorney holder was due service to the petitioner. The Deputy Collector and the Collector were, therefore, justified in setting aside the mutation entry on the ground that the provisions of sub-section (2) of section 135D of the Code had not been complied with and remanding the matter to the Mamlatdar. 19. Section 191 of the Code provides for the mode of serving notice and lays down that every notice under the Act, unless it is otherwise expressly provided, shall be served either by tendering or delivering a copy thereof to the person on whom it is to be served or to his agent, if he have any, or by affixing a copy thereof to some conspicuous place on the land, if any, to which such notice refers. Thus, section 191 of the Code does provide for service of notice on the principal or the agent, however, as noted hereinabove, the agent has to be duly empowered to accept notice on behalf of the principal, in absence of which service of notice on the agent would not amount to service of notice on the principal. 20. It may not be out of place to mention that in these days where day in, day out there are cases coming before the court alleging that the power of attorney on the basis of which valuable land have been transferred is forged, fabricated or bogus and that transactions have been effected behind the back of the original owners by persons acting on the basis of such fraudulent power of attorneys. In such cases, if a person as power of attorney holder were to appear before the revenue authority and waive service of notice on behalf of the principal, the unsuspecting land owner would have no means to learn about such mutation entries being made in respect of his land. Therefore, service of notice on the interested person assumes more significance and to avoid such frauds being perpetrated it is all the more necessary that unless the power of attorney holder is expressly empowered to waive service of notice on behalf of the principal, it be mandatory to effect service upon the principal. In the present case, since the petitioner was not served with the notice under section 135D of the Code, the impugned mutation entry stood vitiated on the ground of breach of the principles of natural justice and had, therefore, been rightly set aside by the Deputy Collector. 21. Once the impugned order of the revisional authority is set aside, the consequence would be that the order passed by the Deputy Collector would stand restored and the order of remand would stand confirmed. As noted hereinabove, the Deputy Collector had by an order dated 29th September, 2007 partly allowed the appeal and set aside Mutation Entry No.1796 dated 10th December, 2004 and had remanded the matter to the Mamlatdar to decide the same afresh after affording an opportunity of hearing to the concerned parties. In view of the fact that the order passed by the Deputy Collector was not stayed in further proceedings, pursuant to the order of remand, the Mamlatdar had proceeded further and by an order dated 25th November, 2011 had closed the proceedings of Remand Case No.57/07 in view of the fact that the revision application filed by the seventh respondent was pending adjudication. Now that this court for the reasons stated hereinabove is inclined to set aside the order passed by the revisional authority, it would be in the interest of justice if the order passed by the Deputy Collector is fully complied with. Since the Mamlatdar had closed the proceedings in view of the pendency of the revision application, now that the order of the revisional authority is being set aside, the proceedings before the Mamlatdar are required to be restored to file to be decided in accordance with the directions issued by the Deputy Collector. Since the Mamlatdar had closed the proceedings in view of the pendency of the revision application, now that the order of the revisional authority is being set aside, the proceedings before the Mamlatdar are required to be restored to file to be decided in accordance with the directions issued by the Deputy Collector. As noticed earlier, the revisional authority, in the revisional proceedings, has gone beyond the scope of the said proceeding and has also commented on the merits of the order passed by the Mamlatdar. It would, therefore, be necessary to clarify that the Mamlatdar, in the remand proceedings, shall decide the same independently without in any manner being influenced by any observation made by the revisional authority in the impugned order. 22. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order dated 5th December, 2012 made by the Secretary, Revenue Department (Appeals), Ahmedabad, is hereby quashed and set aside. Consequently, the order dated 15th May, 2008 made by the Collector as well as the Deputy Collector shall stand restored. For the reasons stated hereinabove, Remand Case No.57/07 shall stand restored to the file of the Mamlatdar, who shall decide the same in accordance with law in terms of the directions issued by the Deputy Collector and without in any manner being influenced by any observation made in the impugned order. Rule is made absolute accordingly with no order as to costs. 23. At this stage, Mr. Jigar Raval, learned advocate for the respondents No.7 and 8 has requested that this order be stayed for a period of three weeks to enable the said respondents to avail of the remedy before the higher forum. This court has duly considered the request, however, in the facts and circumstances of the case, the same is turned down. Petition allowed.