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2016 DIGILAW 1784 (GUJ)

Patel Bhailabhai Paragbhai v. Deputy Collector

2016-08-22

V.M.PANCHOLI

body2016
JUDGMENT : V.M. Pancholi, J. 1. By way of this petition which is filed under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the show cause notice dated 31.1.2003 issued by the respondent under Section 76(A) of the Bombay Tenancy and Agricultural Lands Act of 1948 (hereinafter referred to as 'the Act'). 2. Heard learned advocate Mr. Bukhari for the petitioner and learned Assistant Government Pleader Mr. Jayswal for the respondent. 3. Learned advocate Mr. Bukhari submitted that the father of the petitioner, deceased Paragbhai Prabhudas Patel was the permanent tenant of the land bearing Survey No. 1034 and 1035 situated at village Chhani and he remained in possession of the land in question for more than twenty years. He cultivated the said land during the period between 1936 to 1956 and thereby he was the permanent tenant of the land in dispute. It is the case of the petitioner that in the year 1965, as per the provisions of Section 32(M) of the Act, the purchase price of the land was determined and paid by the father of the petitioner and thereby he became the purchaser of the land in question. The petitioner is the legal heir of deceased Paragbhai Patel. The petitioner has got 'pedhinama' in his favour. It is submitted that the land in question is old tenure land. However, at the relevant point of time, the restrictions which are imposed under Section 43(A) of the Act were not removed and therefore for the purpose of removal of such restriction, an application was made to the Mamlatdar and Agricultural Lands Tribunal, Baroda by the petitioner on 18.12.2001. 4. Learned advocate Mr. Bukhari thereafter submitted that at the time of hearing of the said application before the Mamlatdar and Agricultural Lands Tribunal, the petitioner produced documentary evidence whereby he pointed out that his father was a permanent tenant of the land in question and as the legal heir of the deceased Paragbhai Prabhudas Patel, the petitioner is entitled to continue the possession of the land in question and therefore the transfer made by Will cannot be considered as transfer. It is submitted that after considering the submissions and the record, Mamlatdar and Agricultural Lands Tribunal, Vadodara by order dated 30.4.2002 held that father of the petitioner was permanent tenant of the land in question and the land in question is an old tenure land. Hence, the restrictions imposed under Section 43 of the Act shall be removed from 7/12 extract. 5. It is further contended that the Collector by his communication dated 10.10.2002 which was addressed to the Deputy Secretary, Revenue Department, informed the government that the order dated 30.4.2002 passed by the Mamlatdar and Agricultural Lands Tribunal, Vadodara is correct and in accordance with the circulars issued by the government and therefore requested to give necessary direction. Learned advocate Mr. Bukhari, therefore, submitted that the Collector has confirmed the order passed by the Mamlatdar and Agricultural Lands Tribunal. 6. Learned advocate Mr. Bukhari thereafter urged that when the Collector has confirmed the order of Mamlatdar and Agricultural Lands Tribunal, it is not open for the Deputy Collector i.e. the subordinate officer of the Collector to issue show cause notice to the petitioner under Section 76(A) of the Act and therefore the issuance of the show cause notice is without authority of law and Deputy Collector cannot reopen or review the order of the Collector and therefore the petitioner has preferred this petition at the show cause notice stage. Learned advocate, therefore, requested that this petition be allowed and impugned notice issued by the respondent-Deputy Collector be quashed and set aside. 7. In support of the aforesaid contention, learned advocate Mr. Bukhari has placed reliance upon the following decisions: "(1) Patel Chunibhai Dajibha etc. v. Narayanrao Khanderao Jambekar and another, reported in AIR 1965 SC 1457 . (2) Babubhai Vitthalbhai Patel through Power of Attorney v. Mamlatdar and Agricultural Lands Tribunal (Ganot) and another, reported in 2007(4) GLR 2903." 8. On the other hand, learned Assistant Government Pleader Mr. Jayswal appearing for the respondent mainly submitted that the petitioner has filed the petition at the show cause notice stage and therefore this Court may dismiss the petition only on this ground. It is submitted that the petitioner can point out all the aforesaid aspects before the respondent-authority which has issued show cause notice and therefore this petition be dismissed. Jayswal appearing for the respondent mainly submitted that the petitioner has filed the petition at the show cause notice stage and therefore this Court may dismiss the petition only on this ground. It is submitted that the petitioner can point out all the aforesaid aspects before the respondent-authority which has issued show cause notice and therefore this petition be dismissed. Learned AGP referred to the definition given in Section (2E) of the Act which provides that "Collector" includes an Assistant or Deputy Collector performing the duties and exercising the powers of the Collector under the Bombay Land Revenue Code, 1879 or any other officer specially empowered by the State Government to perform the functions of the Collector under this Act". Learned AGP thereafter referred to the notification dated 5.1.1984 which is produced at page 100 of the compilation and submitted that the government in exercise of the powers conferred under Section (2E) of the Act, specially empowered Deputy Collector (Land Reforms), Appeals, Vadodara to perform the functions of the Collector under Section 74 and 76(A) of the said Act in Vadodara district. 9. It is, therefore, submitted that the petitioner is not correct in submitting that once the order is passed by the Collector on 10.10.2002, his subordinate-Deputy Collector is not authorized or empowered to issue the impugned show cause notice. 10. Learned AGP thereafter submitted that in fact the document which is produced at page 106 of the compilation is not an order of the Collector but it was communication addressed to the Deputy Secretary of the Revenue Department for confirmation of the order passed by the Mamlatdar and Agricultural Lands Tribunal, Vadodara in Tenancy Case No. 133 of 2001. At this stage, learned Assistant Government Pleader Mr. Jayswal has produced on record the communication dated 4.1.2003 addressed by the Revenue Department to the Collector, Vadodara wherein it has been stated that the government has not accepted the order dated 30.4.2002 passed by the Mamlatdar and Agricultural Lands Tribunal, Vadodara and direction was given to the Collector to take the said order into revision under Section 76(A) of the Act. The said communication is taken on record. Copy of the same is also given to learned advocate Mr. Bukhari appearing for the petitioner. 11. The said communication is taken on record. Copy of the same is also given to learned advocate Mr. Bukhari appearing for the petitioner. 11. In view of the aforesaid communication, it is contended that the Deputy Collector who is, in fact, exercising powers of the Collector in pursuance to the notification issued by the government, has issued the show cause notice to the petitioner. Thus, the impugned notice issued by the respondent-Deputy Collector cannot be said to be without authority of law and therefore the petition be dismissed. 12. Having considered the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record and the decisions relied upon by learned advocates, it is revealed that on 30.4.2002, Mamlatdar and Agricultural Lands Tribunal passed an order in favour of the petitioner. However, if the communication produced at page No. 106 of the compilation is carefully seen, it is revealed that by way of the said communication, the Collector informed the Deputy Secretary of the Revenue Department that Mamlatdar and Agricultural Lands Tribunal, Vadodara has passed an order in Tenancy Case No. 133 of 2001 by which he has held that father of the petitioner was a permanent tenant and removed the restriction of Section 43 of the Act from 7/12 extract of the land in question. Thereafter, he opined that the said order is in accordance with the provisions of the Tenancy Act as well as the circular of the government but immediately thereafter it is stated by the Collector that after the papers of the said case are examined by the government, effect of the order of Mamlatdar and Agricultural Lands Tribunal be given in the revenue record and it was requested to the Deputy Secretary to examine the papers and give appropriate direction. It is further revealed that after receipt of the papers from the Collector, Revenue Department examined the papers. After examining the papers, the Revenue Department directed the Collector by communication dated 4.1.2003 to take the order of Mamlatdar and Agricultural Lands Tribunal passed on 30.4.2002 in revision under Section 76(A) of the Act. All the original papers were returned with the said communication to the Collector. After examining the papers, the Revenue Department directed the Collector by communication dated 4.1.2003 to take the order of Mamlatdar and Agricultural Lands Tribunal passed on 30.4.2002 in revision under Section 76(A) of the Act. All the original papers were returned with the said communication to the Collector. Thus, after the receipt of the original papers from the government and as per the direction issued by the government, the respondent-Deputy Collector who is exercising the powers of Collector as per the notification dated 5.1.1984, issued the show cause notice under Section 76(A) of the Act on 31.1.2003. In the impugned show cause notice itself, it is specifically stated that the government has examined the order of Mamlatdar and Agricultural Lands Tribunal and certain irregularities were found in the said order. The petitioner was, therefore, asked to remain present on 14.2.2003 for explanation. In view of the aforesaid facts and circumstances of the case, it is not correct on the part of the petitioner to submit that the Deputy Collector who is subordinate to the Collector has issued show cause notice under Section 76(A) of the Act and therefore he is not empowered to issue such notice. In fact, as observed hereinabove, the powers are vested in the respondent-Deputy Collector in pursuance to the notification dated 5.1.1984. Further, on 10.10.2002, the Collector has not passed any order but it was communication addressed to the government with his observation wherein it has been specifically observed that the effect of the order of Mamlatdar and Agricultural Lands Tribunal would be given in the revenue record after the papers are examined by the government. The government after examining the papers was of the opinion that the Mamlatdar and Agricultural Lands Tribunal committed certain error and therefore direction is given to the Collector to exercise the powers under Section 76(A) of the Act. Thus, in view of the aforesaid facts, the petition is misconceived which is filed at the stage of show cause notice. 13. In the case of Patel Chunibhai Dajibhai (supra), the Hon'ble Supreme Court has observed that the Collector while exercising revisional powers passed an order and thereafter it was taken in review. Thus, in view of the aforesaid facts, the petition is misconceived which is filed at the stage of show cause notice. 13. In the case of Patel Chunibhai Dajibhai (supra), the Hon'ble Supreme Court has observed that the Collector while exercising revisional powers passed an order and thereafter it was taken in review. Hence, the Hon'ble Supreme Court held that the Act does not empower the Collector to review an order passed by him under Section 76(A) and in absence of any power of review, the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkari's order. 14. In the present case as discussed hereinabove, the Collector has not exercised the revisional powers under Section 76(A) of the Act but merely forwarded the original papers and the decision taken by Mamlatdar and Agricultural Lands Tribunal in Tenancy Case No. 133 of 2001 to the government for its perusal and necessary direction. Thus, in my view, the communication dated 10.10.2002 cannot be said to be a order passed by the Collector and therefore there is no question of taking the said order in review as contended by learned advocate appearing for the petitioner. Thus, the decision relied by the learned advocate for the petitioner would not render any assistance to him. 15. In the case of Babubhai Vitthalbhai Patel through Power of Attorney (supra), this Court considered the effect of the circular dated 7.5.2005 which was challenged before this Court. As the facts of the present case are different, the said decision would not be helpful to the petitioner. 16. In view of the above, this petition is dismissed on the ground that the same is premature as the same is against the issuance of the show cause notice. It is open for the respondent-authority to inform the petitioner about the date of hearing in pursuance to the impugned show cause notice and it is also open for the petitioner to take all the available contentions before the respondent-authority. The respondent-authority shall thereafter decide the matter in accordance with law without being influenced by any of the observations made by this Court in this order. Rule is discharged. Interim relief granted earlier stands vacated.