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2017 DIGILAW 473 (GUJ)

Kanubhai Virabhai v. State of Gujarat

2017-02-28

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Kharadi, learned advocate for petitioner, Mr. P.M. Dave, learned advocate for Respondents and Mr. Amit Barot, learned AGP for Respondent No. 1. 2. In present petition, the petitioner has prayed, inter alia, that: "9(B) THIS HON'BLE COURT would be pleased to allow present Special Civil Application by issuing an appropriate writ, order or direction quashing and setting aside the order passed by the respondent No. 1 at ANNEXURE 'C' to the petition and thereby restoring the order passed by the Learned Collector, District Panchmahals at Godhra, at ANNEXURE 'B' to the petition, in the interest of justice." 3. The dispute involved in this petition is related to entry Nos. 169 and 384 which came to be entered into Revenue Record at village Nanisanjeri, Taluka Limkheda, District: Dahod. 4. So far as factual background is concerned, it has emerged from the averments and statements in the petition that the name of the petitioner was entered into the revenue record, so far as the name in survey No. 31 of village Nanisanjeri is concerned. The name of the father of the petitioner was entered vide entry No. 169 and 384. In between the entry No. 275 was also entered into, whereby the land situated in survey No. 31 was divided into 4 parts viz., 31/1, 31/2, 31/3 and 31/4. The entries No. 169 was posted in the year 1960 while entry No. 384 was posted in the year 1977. The respondent Nos. 2 to 5 approached the Learned Deputy Collector, Dahod, by way of R.T.S Appeal No. 105/1991. He allowed the appeal in part by canceling the entry No. 384. 5. The father of the petitioner preferred a Revision Application No. 47/1997 before the Learned Collector, Panchmahals District, at Godhra, who also allowed the revision in part and the order passed by the Deputy Collector qua entry No. 384 was set aside. 6. The respondent Nos. 2 to 5 moved to the respondent No. 1, by way of Revision as provided under Rule 108(6.A) of the Gujarat Land Revenue Rules. The respondent No. 1 vide his order dated December 24, 1998 allowed the revision by holding that the entry No. 164 has lost its effect in view of the entry No. 275 and it was also held that entry No. 384 cancelled, as it is in violation of the provisions of Law. 7. The respondent No. 1 vide his order dated December 24, 1998 allowed the revision by holding that the entry No. 164 has lost its effect in view of the entry No. 275 and it was also held that entry No. 384 cancelled, as it is in violation of the provisions of Law. 7. On the other hand, the details which emerged from impugned orders is that with reference to the above mentioned two entries i.e. Revenue entry No. 169 and entry No. 384, the private respondents 2, 3 and 4 had initiated proceedings by filing RTS Appeal No. 105 of 1991 and challenged the two entries. After adjudicating the said appeal and after considering the objection by the opponent in the said appeal i.e. present petitioners Deputy Collector, vide his order passed in June, 1993 retained the entry No. 169 on the ground that sufficient relevant evidence was not placed on record, thus there was no basis to disturb the entry No. 169. 8. So far as entry No. 384 is concerned, the Deputy Collector appears to have directed that the said entry should be cancelled because the entry was made without permission from the competent authority. 9. The said order dated June, 1993 was carried in Revision Application before the Collector by present petitioners. Revision Application No. 47 of 1993 was filed. The said Revision Application came to be partly allowed vide order dated 09.12.1993 passed by the Collector. The Collector partly allowed the said Revision Application inasmuch as the Collector confirmed the order with reference to entry No. 169, however, Deputy Collector's order with reference to entry No. 384 came to be set aside. The effect of that order passed by the Collector would be that the entry No. 384 would be restored. 10. Being aggrieved by the said order the respondent Nos. 3 and 4 filed Revision Application before the State Government. The Secretary (Appeals), Revenue Department, decided the Revision Application vide his order dated 24.12.1998. The Secretary (Appeals) declared that in view of the subsequent entry No. 275, the entry No. 169 had become redundant. So far as entry No. 384 is concerned, the said Authority set aside the order dated 09.12.1993 passed by the Collector and restored the order dated 10.06.1993 passed by the Deputy Collector. 11. Mr. Kharadi, learned advocate assailed the order passed by the Respondent No. 1 State Government. So far as entry No. 384 is concerned, the said Authority set aside the order dated 09.12.1993 passed by the Collector and restored the order dated 10.06.1993 passed by the Deputy Collector. 11. Mr. Kharadi, learned advocate assailed the order passed by the Respondent No. 1 State Government. He submitted that the decision by the Secretary (Appeals) holding that the entry No. 384 should be set aside, is bad in law and contrary to the record and the said order is passed without taking into account relevant fact. He also submitted that the reasons recorded by the Collector with reference to entry No. 384 is justified and correct and the said decision should not have been disturbed. With such submission Mr. Kharadi, learned advocate submitted that the order passed by Secretary with reference to Entry No. 384 may be set aside. Mr. Kharadi learned advocate submitted that so far as the decision with reference to Entry No. 169 is concerned, the petitioner has no reason or ground to make grievance against the decision of Secretary, more particularly in light of the subsequent entry No. 275. He submitted that the petitioner has no grievance so far as the decision by the Secretary (Appeals) holding that in view of the entry No. 275 the erstwhile entry No. 169 is rendered irrelevant is concerned. 12. Mr. Dave, learned advocate for the respondents opposed the petition and the submission by the learned advocate for the petitioner. Mr. Dave, learned advocate for the respondents submitted that the petition deserves to be dismissed inasmuch as the petitioner has filed Special Civil Application No. 1714/99, which came to be dismissed for non-prosecution vide order dated 13.03.2000. Thereafter, any steps for restoration of the said petition for prosecuting the said petition is not made. It is submitted that the said facts has been suppressed in the present petition. He further submitted that present petition does not deserve to be entertained in light of the fact that with regard to the subject matter of the dispute, the petitioner has filed Regular Civil Suit No. 125 of 1999 which also subsequently came to be dismissed on the ground of non-prosecution. He further submitted that present petition does not deserve to be entertained in light of the fact that with regard to the subject matter of the dispute, the petitioner has filed Regular Civil Suit No. 125 of 1999 which also subsequently came to be dismissed on the ground of non-prosecution. According to learned advocate for respondents, the dispute was agitated by the petitioner before learned Civil Court and since any relief was not granted by the learned Court, the proceedings came to be abandoned and the Court dismissed the Suit in May, 2007 on the ground of non-prosecution. Besides the said contention, learned advocate for the Respondents opposed the petition also on the ground that the order passed by the Secretary does not suffer from any infirmity and he has taken into account all facts as well as the subsequent development and after taking composite and over all view of all facts, the Secretary has passed the order and therefore there is no justification to interfere with the said order. The learned AGP also submitted that the order passed by the Secretary does not suffer from infirmity. 13. I have heard learned advocates for the petitioner and Respondents and learned AGP for respondent State. I have considered the material available on record and the orders passed by Deputy Collector, Collector and Secretary. 14. The learned advocate for respondents has opposed the petition on the ground that a petition being Special Civil Application No. 1714 of 1999 was filed against same order (impugned order), which came to be dismissed on ground of non-prosecution, however, the said petition is, after dismissal on the ground of non-prosecution, is not prosecuted on merits and that therefore the cause against impugned order is abandoned by the Petitioner and in view of the order passed by learned Civil Court in May, 2007 in Regular Civil Suit No. 125 of 1999 also the petition does not deserve to be entertained. 15. Learned advocate for the respondents is, to that extent, justified in his contention that present petition deserves to be rejected in light of the said facts. 16. The petitioner has declared that there is no grievance with regard to the decision relating to entry No. 169 and the petition is restricted to the objection against the decision related to entry No. 384. 17. 16. The petitioner has declared that there is no grievance with regard to the decision relating to entry No. 169 and the petition is restricted to the objection against the decision related to entry No. 384. 17. Now so far as the said entry No. 384 is concerned, on examination of orders passed by Collector, Deputy Collector and particularly order passed by the Secretary, it has emerged that Valiben Kulji being heir of the original owner, got in possession and occupation of the land in question and her name was entered into Revenue Record. Said Valiben Kulji had two daughters and that, therefore, names of two daughters of the said Valiben Kulji should have been entered into Revenue Record, however, said entry was not made and subsequently entry No. 925 came to be entered whereby the transaction of mortgage in favour of one Mr. Hirabhai came to be entered. After having recorded the said details the Secretary has recorded the fact that the Petitioners are nephew of said Valiben Kunji and, therefore, in any case their names could not have been entered into as the heirs of said Valiben Kunji and the petitioners have failed to establish their rights in respect of land in question for which entry No. 384 came to be made. 18. The Petitioner being Nephew of said Valiben Kunji cannot have any right to the property more particularly in view of the fact that said Valiben Kunji has two daughters and that, therefore, the entry No. 384 in name of the petitioners could not have been made. 19. On the said count, the Authority reached to the conclusion that entry No. 384, is even otherwise, incorrectly made and if the Deputy Collector's decision on strength of Section 73(AA) is taken into account then also in view of the fact that the petitioner is not heir or legal representative or linear descendant of Valjiben Kunji, has no right and that, therefore, the said entry No. 384 is unauthorised, illegal and deserves to be set aside. 20. Having reached to the said conclusion, the Secretary directed that said entry No. 384 should be cancelled. 21. On examination of the reasons recorded by Secretary in the order it becomes clear that the reasons are based on material on record and they are supported by cogent evidence and there is no justification to disturb the said findings of facts. 22. 21. On examination of the reasons recorded by Secretary in the order it becomes clear that the reasons are based on material on record and they are supported by cogent evidence and there is no justification to disturb the said findings of facts. 22. Even otherwise, at the time of hearing of the petition, learned advocate for the petitioner failed to point out any material which would convince this Court that the findings of fact recorded by Secretary with reference to relationship of present petitioner with the said Valiben Kunji, is incorrect or perverse. 23. Thus, the petitioner has failed to establish any error in impugned order dated 24.12.1998 and, therefore, the petition fails and deserves to be rejected and is accordingly rejected. Rule discharged. No cost. Petition Dismissed