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2017 DIGILAW 964 (GUJ)

Vasudev Nanjibhai Patel v. State of Gujarat

2017-05-04

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Kanabar, learned advocate for the petitioner and Mr. Patel, learned AGP. 2. In present petition, the petitioner has prayed, inter alia, that: "(3) B. 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 aide the impugned order dated 07/04/2014 passed by the respondent No. 1 in the Revision Application No. MVV/JMN/AML/82 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. 82 of 2009 in the facts and circumstances of the case and in the interest of justice;" 3. The facts involved in this petition can be summarized thus: 3.1 According to learned advocate for the petitioner, he purchased the land in question in July 2006. The authorities claimed that the parcels of land which the petitioner 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 sold without prior permission from the competent authority. 3.2 In this background, the authorities instituted proceedings against the petitioner on ground of alleged breach of condition (of grant/allotment). The authorities alleged that the lands allotted/granted in Santhli basis came to be sold without prior permission from the competent authority. 3.3 The petitioner herein opposed the notice and the proceedings and contended that he had not committed breach of any condition and the sale was legal and regular. 3.4 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. 3.5 Feeling aggrieved by the orders passed by the Deputy Collector in 'breach of condition proceedings' (sharatbhang case), the petitioner approached the learned Revenue Tribunal by way of revision application. 3.4 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. 3.5 Feeling aggrieved by the orders passed by the Deputy Collector in 'breach of condition proceedings' (sharatbhang case), the petitioner approached the learned Revenue Tribunal by way of revision application. 3.6 Initially, learned Tribunal entertained the revision application and also granted ad-interim relief, however, subsequently, after hearing the parties, learned Tribunal disposed of the case and declined to entertain the same on merits for want of jurisdiction. 3.7 After the revision application came to be disposed of for want of jurisdiction by the learned Tribunal, the petitioner approached the Secretary (Appeals). The Secretary (Appeals), without granting any opportunity to the petitioner and without even considering his submissions, informed the petitioner, vide communication dated 7.4.2014 that against the order passed by the Deputy Collector, the petitioner should approach the competent authority, i.e. Collector and the proceedings cannot be entertained by the Secretary (Appeals) directly against the order passed by the Deputy Collector. 3.8 Feeling aggrieved by the said communication by the Secretary (Appeals), the petitioner has taken out present petition. 4. Mr. Kanabar, learned advocate for the petitioner submitted that the Secretary issued communication dated 7.4.2014 without granting any opportunity of hearing to the petitioner and thereby the petitioner is 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 whereby certain parcels of land came to be released from rigorous of new tenure. According to the learned advocate for the petitioner, 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 petitioner. 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. 5. Per contra, learned AGP would submit that the petitioner has already availed remedy before the authority under the Act i.e. when the petitioner approached the learned Tribunal and the Secretary against the order passed by the Deputy Collector. 5. Per contra, learned AGP would submit that the petitioner has already availed remedy before the authority under the Act i.e. when the petitioner approached the learned Tribunal and the Secretary against the order passed by the Deputy Collector. He submitted that the petitioner should be relegated to the statutory authority who can examine and verify factual aspects, more particularly those details which the petitioner has asserted in present petition. Learned AGP submitted that in view of substantive alternative statutory remedy to the petitioner, the petitioner should be relegated to the said authority, more particularly in view of the fact that the petitioner has already availed the said remedy. 5.1 However, learned AGP could not defend the communication from the office of the Secretary who issued the said communication without granting opportunity of hearing to the petitioners. 6. I have considered the submissions by learned advocate for the petitioner and learned AGP. 7. From the material available on record and from the submissions by learned advocate for the petitioner and learned AGP, it has emerged that undisputedly, the petitioner has availed statutory remedy against the order passed by the Deputy Collector. 8. Narration of facts have brought out that after the Deputy Collector passed impugned orders, the petitioner had directly approached the learned Tribunal and 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 jurisdiction/authority. 8.1 Thereafter the petitioner approached the Secretary (Appeals). 8.2 According to the respondents, the petitioner ought to have approached the Collector against the said order. 9. In this view of the matter, at this stage, the Court is not inclined to enter into the said controversy as to whether the petitioner should have approached the Collector or the petitioner could have approached the Secretary (Appeals) 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 the 'sharatbang' case breach of condition proceedings is not the issue involved in present petition or raised at this stage. 10. The issue related to the competence of the officer who can adjudicate the matter against the order passed by the Deputy Collector in the 'sharatbang' case breach of condition proceedings is not the issue involved in present petition or raised at this stage. 10. From the record, it has emerged that the petitioner has 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." 11. From the said statement it appears that substantive grievance by the petitioner is that the petitioner feels that the authorities have rendered the petitioners remedyless inasmuch as on one hand 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/Collector. 12. What is pertinent is the fact that the Secretary issued the said communication without granting any opportunity of hearing to the petitioner. 12.1 It is true that if the Secretary had granted opportunity of hearing to the petitioner, the petitioner could have put forward his submissions for consideration by the learned Tribunal. 12.2 However, the Secretary (Appeals) did not even consider it necessary to grant opportunity of hearing to the petitioner. 12.3 Therefore, the communication conveying the petitioner the instructions to approach the Collector without hearing the petitioner cannot be sustained. 12.4 The said decision deserves to be set aside and the petitioner should be relegated to the authority where the petitioner had filed the revision application after the order passed by the learned Tribunal. 12.5 Therefore, the following order is passed: "(a) The communication/intimation (order) dated 7.4.2014 by the office of the Secretary is set aside. (b) The proceedings are remitted to the Secretary (Appeals) and the petitioner is relegated to the said authority. (c) The Secretary (Appeals) shall issue notice to the petitioner informing the date of hearing and thereafter pass appropriate reasoned and speaking order after granting opportunity to the petitioner. (b) The proceedings are remitted to the Secretary (Appeals) and the petitioner is relegated to the said authority. (c) The Secretary (Appeals) shall issue notice to the petitioner informing the date of hearing and thereafter pass appropriate reasoned and speaking order after granting opportunity to the petitioner. (d) At this stage, it will not be out of place to mention that to support and justify his contentions that the transaction executed by him is not illegal or irregular and is not hit by any provisions under the Act. The petitioner has placed heavy reliance on the order dated 1.11.2004 and also on Government Resolution dated 3.3.2017. Therefore, it is clarified that it will be open to the petitioner 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 petitioner has already availed alternative statutory remedy by challenging the orders passed by the Deputy Collector, 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." 13. In view of the fact that during the pendency of this petition, 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 petitioner receives the intimation from the Secretary about hearing of the application, it will be open to the petitioner to submit application with request to grant interim relief and to continue the protection. Till the date the Secretary passes the order in that regard, the protection granted by this Court will continue. 14. 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. Till the date the Secretary passes the order in that regard, the protection granted by this Court will continue. 14. 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 petition is partly allowed and disposed of. Rule is made absolute to the aforesaid extent. Petition Partly Allowed.