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2017 DIGILAW 1512 (GUJ)

Vikramkumar Chhotalal Shah v. State of Gujarat

2017-09-04

J.B.PARDIWALA

body2017
ORDER : J.B. PARDIWALA, J. 1. Since the issues raised in all the captioned petitions are the same and the parties are also the same, those were heard analogously and are being disposed of by this common order. 2. For the sake of convenience, the Special Civil Application No. 14702 of 2017 is treated as the lead matter. 3. By this application under Article 227 of the Constitution of India, the applicant has prayed for the following reliefs: “12(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 29.07.2016 passed by the Respondent No. 1 Additional Secretary, Revenue Department (Appeals), Ahmedabad in RTS Revision No. MVV/HKP/NVS/64/2014; (B) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the operation, implementation and execution of the order dated 29.07.2016 passed by the Respondent No. 1 Additional Secretary, Revenue Department (Appeals), Ahmedabad in RTS Revision No.MVV/HKP/NVS/64/2014; (C) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to grant status quo qua the disputed land in question. (D) Be pleased to award the cost of this proceedings. (E) Be pleased to pass such other and further relief as may be deemed fit by Your Lordships in the facts and circumstances of the case and in the interest of justice.” 4. It appears from the materials on record that the petitioner herein and the respondent No. 5 are real brothers. The dispute pertains to three properties. It appears that in the record of rights, the names of both i.e. the petitioner and his brother the respondent No. 5 are figured with respect to the three properties. In the year 2010, the petitioner herein is said to have executed a relinquishment deed in favour of his brother i.e. the respondent No. 5. The petitioner is said to have relinquished his right, title and interest with respect to all the three properties in favour of his brother. The respondent No. 5 approached the authority to get the name of the petitioner deleted from the record of rights on the strength of the relinquishment deed. At that point of time, the petitioner raised an objection. 5. The case of the petitioner is that the relinquishment deed was executed under threat, pressure and coercion. 6. The respondent No. 5 approached the authority to get the name of the petitioner deleted from the record of rights on the strength of the relinquishment deed. At that point of time, the petitioner raised an objection. 5. The case of the petitioner is that the relinquishment deed was executed under threat, pressure and coercion. 6. The case put-forward by the petitioner was not accepted by the City Survey Superintendent and the Deputy Collector. The petitioner, being dissatisfied with the orders passed by the City Survey Superintendent and the Deputy Collector, went before the Collector and succeeded. 7. The respondent No. 5, being dissatisfied with the order passed by the Collector, went before the S.S.R.D. and the S.S.R.D. has passed impugned order remanding the matter to the Collector. The S.S.R.D. in its impugned order, has observed as under: “On considering the revision application, both the parties available oral and written submissions, produced evidence, impugned order of Collector and documentary evidence, it appears that name of Bharatkumar Chhotubhai Shah and Vikramkumar Chhotubhai Shah are joint owners as per the property card record of Tika No. 6, S. No. 617 at and post: Saribujrang, Tal: Gandevi. Vikramkumar Chhotubhai Shah has lifted/waived his right by filing an affidavit An entry No. 875 dated 20.5.2010 deleting his name has been made, which has been certified by City Survey Superintendent, Saribujrang, against which the present applicants preferred an appeal before the Deputy Collector, Chikhli, which was rejected by him and same was further challenged by way of revision before Collector, Navsari by the opponents, which was allowed challenging which the present application has been preferred. On considering the order of the Collector, the conclusion of Collector is, that if the right is to be waived in the property in question, qua his right, the right can be waived. But the waiver has been made from whole property by the declarant because of which the rights of legal heirs are affected. Also in the present case, the signature - consent of legal heirs of the brothers is also required, which has not been taken. The affidavit of waiver is not registered. But the applicant contends that once the entry has been certified on the basis of affidavit. Thereafter, the opponents raise any objection a civil dispute. Moreover, as per the Govt. Resolution dated 01.12.2003 for certifying entry a registered document is not required. The affidavit of waiver is not registered. But the applicant contends that once the entry has been certified on the basis of affidavit. Thereafter, the opponents raise any objection a civil dispute. Moreover, as per the Govt. Resolution dated 01.12.2003 for certifying entry a registered document is not required. An FIR has also been registered on the issue of false affidavit affirmed by opponents. The applicant has contended that the reasons of delay were not cited in appeal before Deputy Collector and revision before the Collector. This issue is required to be noticed. It is contended that the opponent has not given an opportunity to City Survey for argument. Whereas the applicant states that the notice has been served by City Survey and after hearing the entry has been certified. On considering the said issue also, the applicant's contention is required to be partly accepted. Therefore, it appears that the issue requires reconsideration after hearing parties, considering record of City Survey and physical verification of site. The below order is passed. ORDER The applicant's revision application is partly allowed. The Order No. CH/RTS/Revision/ Case No. 414 dated 03.06.2014 is quashed. On the above discussion in paragraph, the case is remanded to Collector, Navsari. Today on 29.07.2016 with my signature and seal.” 8. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that no error, not to speak of any error of law could be said to have been committed by the S.S.R.D. in passing the impugned order. The S.S.R.D. has thought fit to remand the matter to the Collector for fresh consideration. It is needless to clarify that the Collector shall reconsider the matter, as directed by the S.S.R.D. on its own merits without being influenced in any manner by any of the observations made by the S.S.R.D. 9. With the above, all the three petitions are disposed of.