Research › Search › Judgment

Gujarat High Court · body

2017 DIGILAW 912 (GUJ)

Vasudev Nanjibhai Patel v. State of Gujarat

2017-04-28

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Kanabar, learned advocate for the petitioners and Mr. Patel, learned AGP. 2. At the outset, it is necessary to mention that learned advocate for the petitioners and learned AGP jointly submitted that the issue involved in this group of petitions is similar and common. It is also submitted that identical contentions are raised in all petitions and the orders which are impugned in present petitions are also similar. It is clarified by learned advocate for the petitioners and learned AGP that the parties are also common, however, separate petitions have been filed because survey numbers of parcels of land are different and separate but identical orders have been passed by the Deputy Collector. Besides this, learned advocate for the petitioners and learned AGP have made common submissions. Therefore, these petitions are decided by common judgment. 3. Having regard to the fact that learned advocate for the petitioners submitted that similar relief is prayed for in all petitions, illustratively, the relief prayed for in Special Civil Application No. 6897 of 2014 is quoted below: "13B. Your Lordships may further be pleased to issue a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari quashing and setting aside the impugned order dated 07/04/2014 passed by the respondent No. 1 in the Revision Application No. MVV/JMN/AML/87 of 2013 and may kindly direct the respondent No. 1 to entertain the petitioner's revision application and may be decided on merits after hearing the parties; Or in the alternative (C) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari quashing and setting aside the Order dated 29/03/2010 passed by respondent No. 2 in breach of condition case No. 86 of 2009 in the facts and circumstances of the case and in the interest of justice;" 4. The facts involved in this group of petitions can be summarized thus: 4.1 According to learned advocate for the petitioners, they purchased the land in question in July 2006. The authorities claimed that the parcels of land which the petitioners purchased, were allotted/granted to the concerned persons, (i.e. the vendors) on Santhli basis and that, therefore, the said parcels of land could not have been held without prior permission from the competent authority. The authorities claimed that the parcels of land which the petitioners purchased, were allotted/granted to the concerned persons, (i.e. the vendors) on Santhli basis and that, therefore, the said parcels of land could not have been held without prior permission from the competent authority. 4.2 In this background, the authorities instituted proceedings against the petitioners on ground of breach of condition (of grant/allotment). The authorities alleged that the lands allotted/granted in Santhli basis came to be sold to the petitioners without prior permission from the competent authority. 4.3 The petitioners herein opposed the notice and the proceedings and contended that they had not committed breach of any condition and the sale was legal and regular. 4.4 The Deputy Collector adjudicated the notice and passed order dated 29.3.2010 and cancelled the transaction and directed that the parcels of land in question shall vest in the Government. 4.5 Feeling aggrieved by the orders passed by the Deputy Collector in 'breach of condition proceedings', the petitioners approached the learned Revenue Tribunal by way of revision application. 4.6 Initially, the learned Tribunal entertained the revision application and also granted ad-interim relief, however, subsequently, after hearing the parties, the learned Tribunal disposed of the case and declined to entertain the same on merits for want of jurisdiction. 4.7 After the revision application came to be disposed of for want of jurisdiction by the learned Tribunal, the petitioners approached the Secretary (Appeals). The Secretary (Appeals), without granting any opportunity to the petitioners and without even considering their submissions, informed the petitioners, vide communication dated 7.4.2014 that against the order passed by the Deputy Collector, the petitioners should approach the competent authority, i.e. Collector and the proceedings cannot be entertained by the SSRD directly against the order passed by the Deputy Secretary. 4.8 Feeling aggrieved by the said communication by the Secretary (Appeals), the petitioners have taken out present petitions. 5. Mr. Kanabar, learned advocate for the petitioners submitted that the Secretary issued communication dated 7.4.2014 without granting any opportunity of hearing to the petitioners and thereby the petitioners are rendered remedyless. He further submitted that the order passed by the Deputy Collector is contrary to the order dated 27.10.2004/1.11.2004 passed by the Deputy Collector whereby certain parcels of land came to be released from rigorous of new tenure. He further submitted that the order passed by the Deputy Collector is contrary to the order dated 27.10.2004/1.11.2004 passed by the Deputy Collector whereby certain parcels of land came to be released from rigorous of new tenure. According to the learned advocate for the petitioners, the parcels of land (survey numbers whereof are mentioned in the said order dated 1.11.2004) were converted into old tenure land and that the parcels of land are purchased by the petitioners. However, while passing the impugned orders, the Deputy Collector failed to take into account the said fact and that, therefore, the impugned orders passed by the Deputy Collector are bad in law and without application of mind. 6. Per contra, learned AGP would submit that the petitioners had already availed the remedy before the authority under the Act when the petitioners are approached the learned Tribunal and the SSRD against the order passed by the Deputy Collector. He submitted that the petitioners should be relegated to the statutory authority who can examine and verify the factual aspects, more particularly those details which the petitioners have asserted in present petitions. Learned AGP submitted that in view of the substantive alternative statutory remedy to the petitioners, the petitioners should be relegated to the said authority, more particularly in view of the fact that the petitioners have already availed the said remedy. 7. Learned AGP, however, could not defend the communication from the office of the Secretary who issued the said communication without granting opportunity of hearing to the petitioners. 8. I have considered the submissions by learned advocate for the petitioners and learned AGP. 9. From the material available on record and from the submissions by learned advocate for the petitioners and learned AGP, it has emerged that undisputedly, the petitioners had availed statutory remedy against the order passed by the Deputy Collector. 9.1 Narration of facts have brought out that after the Deputy Collector passed the impugned orders, the petitioners had directly approached the learned Tribunal. The learned Tribunal had granted ex parte ad-interim relief, however, subsequently, after hearing the parties, learned Tribunal disposed of the revision application for want of prosecution. 9.2 Thereafter the petitioners approached the Secretary (Appeals). 9.3 According to the respondents, the petitioners ought to have approached the Collector against the said order. 10. The learned Tribunal had granted ex parte ad-interim relief, however, subsequently, after hearing the parties, learned Tribunal disposed of the revision application for want of prosecution. 9.2 Thereafter the petitioners approached the Secretary (Appeals). 9.3 According to the respondents, the petitioners ought to have approached the Collector against the said order. 10. At this stage, the Court is not inclined to enter into the said controversy as to whether the petitioners should have approached the Collector or the petitioners could have approached the SSRD directly against the order passed by the Deputy Collector. The issue related to the competence of the officer who can adjudicate the matter against the order passed by the Deputy Collector in breach of condition proceedings is not the issue involved in present petitions or raised at this stage. 11. From the record, it has emerged that in the petition, the petitioners have averred and stated that: "The petitioner submits that at once the Hon'ble Tribunal has refused to entertain the Revision Application for want of jurisdiction and now respondent No. 1 being the highest authority in the State also refuses to entertain the Revision Application which is bound to demote law, justice, equity and good conscience." 12. From the said statement it appears that the substantive grievance by the petitioners is that the petitioners feel that the authorities have rendered the petitioners remedyless inasmuch as on one hand the learned Tribunal declined to entertain the revision application on ground of jurisdiction and thereafter the Secretary (Appeals) also declined to entertain the proceedings on the ground that the persons should first approach the Deputy Collector. 13. What is pertinent is the fact that the Secretary issued the said communication without granting any opportunity of hearing to the petitioners. 13.1 It is true that if the Secretary had granted opportunity of hearing to the petitioners, the petitioners could have endeavoured to persuade the Secretary that the proceedings could lie before the Secretary and he can decide the revision application. 13.2 However, the Secretary (Appeals) did not even consider it necessary to grant opportunity of hearing to the petitioners. 14. The communication conveying the petitioners the instructions to approach the Collector without hearing the petitioners cannot be sustained. 13.2 However, the Secretary (Appeals) did not even consider it necessary to grant opportunity of hearing to the petitioners. 14. The communication conveying the petitioners the instructions to approach the Collector without hearing the petitioners cannot be sustained. 14.1 The said decision deserves to be set aside and the petitioners should be relegated to the authority where the petitioners had filed the revision applications after the order passed by the learned Tribunal. 15. Therefore, the following order is passed: "(a) The communication dated 7.4.2014 by the office of the Secretary is set aside. (b) The proceedings are remitted to the Secretary (Appeals) and the petitioners are relegated to the said authority. (c) The Secretary (Appeals) shall issue notice to the petitioners informing the date of hearing and pass appropriate reasoned and speaking order after granting opportunity to the petitioners. (d) At this stage, it will not be out of place to mention that the petitioners are heavily relying on the order dated 1.11.2004 and also on Government Resolution dated 3.3.2017. To support and justify their contentions that the transaction executed by them is not illegal or irregular and is not hit by any provisions under the Act. Therefore, it is clarified that it will be open to the petitioners to raise all contentions as may be available in law at the time of hearing before the Secretary, including the contention on strength of order dated 1.11.2004 and government resolution dated 3.3.2017. (e) It is further clarified that it will be open to the respondents also to raise all contentions as may be available in law, including those about maintainability of the proceedings/limitation, etc. (f) It is also clarified that since the petitioners had already availed alternative statutory remedy by challenging the orders passed by the Deputy Collector and the Court has, in that view of the matter, relegated the petitioners to the statutory remedy and that, therefore, the Court has not entered into the merits of the order passed by the Deputy Collector and present judgment shall not be construed as expression of any opinion or view of the Court on merits of the case and/or with regard to the order passed by the Deputy Collector. (g) It is further clarified that merely because the Court has not entertained the petitions on the ground that the petitioners have already availed statutory remedy and therefore, the petitioners should be relegated to the competent authority, it shall not be construed that the Court has not entertained the petitions on merits." 15.1 In view of the fact that during the pendency of these petitions, the Court had passed interim order staying implementation and operation of the entry mutated by the authority (pursuant to the impugned order passed by the Deputy Collector) it is clarified that after the petitioners receive the intimation from the Secretary about hearing of the application, it will be open to the petitioners to request the Secretary to grant interim relief and to continue the protection and till the time/date the Secretary passes the order in that regard, the protection granted by this Court will continue. 15.2 Since the proceedings are pending since almost 8 years, the Secretary shall endeavour to decide the matter as expeditiously as possible and preferably within three months. With the aforesaid clarifications and observations, the petitions are partly allowed and disposed of. Rule is made absolute to the aforesaid extent. Petition Partly Allowed.