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Gujarat High Court · body

2019 DIGILAW 1011 (GUJ)

Shashikant Motilal Shah v. State of Gujarat

2019-10-21

V.M.PANCHOLI

body2019
JUDGMENT : V.M. Pancholi, J. 1. Looking to the issue involved in the present petition, this petition is taken up for final disposal with the consent of learned advocates appearing for the parties. 2. Rule. Learned AGP Mr. K.M. Antani for respondent no. 1 to 4 and learned advocate, Mr. B.M. Mangukiya for the respondent nos. 5 and 6 waive service of notice of rule. 3. Heard learned Senior Counsel, Mr. Mehul S. Shah appearing with learned advocate, Mr. Umang Vyas for the petitioners, learned AGP Mr. K.M. Antani for respondent no. 1 and learned advocate, Mr. B.M. Mangukiya for the respondent nos. 5 and 6. 4. This petition is filed under Articles 226 and 227 of the Constitution of India, in which, the petitioner has prayed for following relief’s, "(a) That this Hon'ble Court may be pleased to issue appropriate writ, order or direction in the nature of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction to quash and set aside order dated 12th April 2016 passed by Respondent No. 1 in Revision Application No. 41 of 2013 as well as order dated 18th December 2014 passed by the Deputy Collector, Chotila in Remand RRT Appeal No. 223 of 2013 and further be pleased to set aside mutation entry no. 5775 and all other subsequent entries made by the respondent authorities in revenue record with regard to land bearing Revenue Survey Nos. 975 and 976 of village Muli, Taluka Chotila, District: Surendranagar; (b) That this Hon'ble Court may be pleased to stay the further operation of the impugned order dated 12th April 2016 passed by Respondent No. 1 in Revision Application No. 41 of 2013 as well as order dated order dated 18th December 2014 passed by the Deputy Collector, Chotila in Remand RRT Appeal No. 223 of 2013 and further be pleased to stay the mutation entry no. 5775 and all other subsequent entries made by the respondent authorities in revenue record with regard to lands bearing Revenue Survey Nos. 5775 and all other subsequent entries made by the respondent authorities in revenue record with regard to lands bearing Revenue Survey Nos. 975 and 976 of village Muli, Taluka Chotila, District Surendranagar, pending admission hearing and final disposal of this petition; (c) Pending admission, hearing and final disposal of this petition, this Honourable Court may be pleased to restrain the private respondents from selling, disposing of, pledging, hypothecating or in any manner creating third party rights over the land bearing Revenue Survey Nos. 975 and 976 of village Muli, Taluka Chotila, District Surendranagar on the basis of the mutation entries in question. (d) xxx xxx xxx (e) xxx xxx xxx (f) YOUR LORDSHIPS be pleased to issue appropriate writ, order, direction quashing and setting aside the order dated 21.07.2016 passed by the Collector, Surendranagar respondent No. 2 herein and Collector, Surendranagar May be directed to consider the revision application filed by the petitioner begin No. R.R.T. Rivi. Case No. 165/2014-15 on its merits after hearing the parties." 5. Learned Senior Counsel, Mr. Mehul S. Shah appearing for the petitioner submitted that the dispute is with regard to the land bearing Revenue New Survey No. 975 & 976 (Old Survey Nos. 1834, 1835 & 1836) of Village: Muli, Taluka: Chotila, District: Surendranagar. It is the case of the petitioner that the aforesaid disputed lands were owned and occupied by late Shri Motilal Kalidas, the father of the petitioner and Ravubha Gulabsang, predecessor in title of the respondent nos. 5 and 6. It is submitted that initially the said lands were given Survey Nos. 1834, 1835 & 1836 and during survey settlement in the year 1952, the said lands were given new survey numbers i.e. Survey Nos. 975 & 976 vide mutation entry no. 537 on 18.05.1952. It is the case of the petitioner that since then, the aforesaid lands were running in the joint name of Motilal Kalidas and Ravubha Gulabsang. Learned Senior Counsel further submitted that upon death of one of the two joint owners i.e. Ravubha Gulabsang, name of Gulabsang Amarsang came to be mutated being successor of Rabubha Gulabsang vide entry no. 3205 and the same entry was mutated on 15.07.1968 and, thereafter, the land in question stood in the joint name of Motilal Kalidas and Gulabsang Amarsang, however after the death of Gulabsang Amarsang, vide entry no. 3205 and the same entry was mutated on 15.07.1968 and, thereafter, the land in question stood in the joint name of Motilal Kalidas and Gulabsang Amarsang, however after the death of Gulabsang Amarsang, vide entry no. 5775, name of father of the petitioner was deleted from the revenue record erroneously. At this stage, it is submitted that thereafter Mutation Entry Nos. 5776, 11395, 11792, 11793 & 12658 came to be mutated in the revenue record but at no point of time, the name of the father of the petitioner was reflected in the revenue record as joint owner for the land in question. 6. It is submitted that before deleting the name in the revenue record of the father of the petitioner, no notice was issued under Section 135-D of the Gujarat Land Revenue Code and, therefore, when the petitioner came to know about the aforesaid disputed entries, the petitioner filed RTS Appeal No. 182/2012 before the Deputy Collector and the Deputy Collector, vide order dated 05.04.2013, rejected the said Appeal mainly on the ground of delay in filing the Appeal. He further submitted that against the said order, the petitioner filed Revision Application before the Collector and the Collector vide order dated 24.09.2013, partly allowed the Revision Application preferred by the petitioner by setting aside the order dated 05.04.2013 passed by the Deputy Collector and thereby remanded the matter back to the Deputy Collector for deciding the issue afresh. 7. At this stage, learned Senior Counsel would submit that the private respondents filed Revision Application before the respondent - SSRD challenging the order dated 24.09.2013 passed by the Collector. At this stage, it is also pointed out by learned Senior Counsel that during the pendency of the said Revision Application before the respondent - SSRD, the Deputy Collector has decided the Remand RRT Appeal by passing order dated 18.12.2014. It is therefore submitted that thus it is the case of the petitioner that the order of the Collector has been implemented and, therefore, Revision Application filed by the private respondents before the respondent - SSRD has become infructuous, however, though the said aspect was specifically pointed out before the respondent - SSRD, without considering the fact that the order of the Collector has been implemented, the respondent - SSRD passed the impugned order and, therefore, the present petition is filed. 8. 8. At this stage, learned Senior Counsel has also pointed out from the record that in the meantime, the petitioner challenged the order passed by the Deputy Collector, which was passed after the matter was remanded by the Collector to him by filing Revision Application before the Collector and initially the Collector did not pass any order in the said Revision Application on the ground that the private respondents have filed Revision Application before the respondent - SSRD, however thereafter, the Collector has passed an order on 21.07.2016, by which, the Collector has dismissed the Revision Application filed by the petitioner on the ground that now the respondent - SSRD has confirmed the order of the Deputy Collector. 9. Learned Senior Counsel would submit that the respondent - SSRD has not set aside the order of the Collector, by which, he had remanded the matter back to the Deputy Collector for deciding the issue afresh and on the contrary, the respondent - SSRD has confirmed the order dated 18.12.2014 passed by the Deputy Collector, which was not subject matter of challenge before the respondent - SSRD. It is, therefore, urged that the impugned order passed by the respondent - SSRD be quashed and set aside. 10. Learned Senior Counsel also submitted that similarly the impugned order dated 21.07.2016 passed by the Collector, by which, the Revision Application filed by the petitioner challenging the order dated 18.12.2014 passed by the Deputy Collector has been dismissed, be set aside. 11. On the other hand, learned advocate, Mr. Mangukiya appearing for the private respondents has opposed this petition and submitted that the petitioner filed RTS Appeal before the Deputy Collector after a period of 33 years and when the petitioner has failed to give explanation for not filing Appeal within limitation period, the Deputy Collector rejected the said Appeal. It is further submitted that the petitioner is not cultivating the land in question nor the petitioner is in possession of the land in question. It is further submitted that the Collector while passing an order dated 24.09.2013, by which, he has remanded the matter back to the Deputy Collector, had committed an error while not appreciating the aspect of gross delay and, therefore, the private respondents filed Revision Application before the respondent - SSRD challenging the order passed by the Collector. It is further submitted that the Collector while passing an order dated 24.09.2013, by which, he has remanded the matter back to the Deputy Collector, had committed an error while not appreciating the aspect of gross delay and, therefore, the private respondents filed Revision Application before the respondent - SSRD challenging the order passed by the Collector. It is submitted that the respondent - SSRD has set aside the order of the Collector and, therefore, the contention taken by learned advocate for the petitioner that the order of the collector is implemented, would not be available to him. Learned advocate, Mr. Mangukiya has referred to the order passed by the respondent - SSRD and, thereafter, referred to affidavit in reply filed by the respondent no. 6 and after referring to the same, it is urged that the present petition be dismissed. 12. Having heard learned advocates appearing for the parties and having gone through material placed on record, it has emerged that the petitioner challenged the disputed entry by filing RTS Appeal before the Deputy Collector and the Deputy Collector rejected the said Appeal preferred by the petitioner vide order dated 05.04.2013 on the ground of delay in filing the Appeal. The petitioner, therefore, challenged the said order by filing Revision Application before the Collector and the Collector, vide order dated 24.09.2013, set aside the order passed by the Deputy Collector and remanded the matter back to the Deputy Collector for deciding the issue afresh. The said order passed by the Collector is challenged by the private respondents by filing Revision Application before the respondent - SSRD. 13. At this stage, it is pertinent to note that before the Revision Application filed by the private respondents was decided by the respondent - SSRD, the Deputy Collector, on remand, passed a fresh order dated 18.12.2014 and thereby once again rejected the Appeal filed by the petitioner. Thus, the order passed by the Collector has been implemented and when the Deputy Collector has passed fresh order pursuant to the remand, the petitioner preferred Revision Application before the Collector challenging the said order. 14. Thus, the order passed by the Collector has been implemented and when the Deputy Collector has passed fresh order pursuant to the remand, the petitioner preferred Revision Application before the Collector challenging the said order. 14. It is further pertinent to note that in the reply filed by the petitioner before the respondent - SSRD, it was specifically pointed out by the petitioner that now the Deputy Collector has passed order on 18.12.2014 and thereby the Collector's order has been implemented and, therefore, the Revision Application has become infructuous. The said aspect is reflected from the written arguments submitted by the petitioner herein before the respondent - SSRD, which is produced on record Page No. 40 of the compilation. Inspite of specific contention taken by the petitioner before the respondent - SSRD, the respondent - SSRD passed impugned order whereby without setting aside the order of the Collector, now the order dated 18.12.2014 passed by the Deputy Collector has been confirmed, operative portion of the said order is at Page No. 48 of the compilation. 15. At this stage, it is pertinent to note that before the respondent - SSRD, the order dated 18.12.2014 was not subject matter of challenge. It is required to be recalled that the private respondents preferred Revision Application before the respondent - SSRD challenging the order passed by the Collector and, therefore, the subject matter of challenge was the said order. The order dated 18.12.2014 passed by the Deputy Collector is on the contrary passed in favour of the private respondents - the applicants in Revision Application filed before the respondent - SSRD and, therefore, it was not open for the respondent - SSRD to confirm the order passed by the Deputy Collector. 16. Because of the impugned order passed by the respondent - SSRD in favour of the private respondents by confirming the order dated 18.12.2014 passed by the Deputy Collector, the petitioner has lost remedy of filing Revision Application before the Collector and, thereafter, another Revision Application under Section 211 of the Revenue Code before the respondent - SSRD. 17. From the material placed on record, it is further revealed that now because of the impugned order passed by the respondent - SSRD, the Revision Application filed by the petitioner challenging the order dated 18.12.2014 passed by the Deputy Collector is dismissed. 17. From the material placed on record, it is further revealed that now because of the impugned order passed by the respondent - SSRD, the Revision Application filed by the petitioner challenging the order dated 18.12.2014 passed by the Deputy Collector is dismissed. In view of the aforesaid facts of the present case, the impugned order passed by the respondent - SSRD deserves to be quashed and set aside. 18. Therefore, the present petition stands allowed. The impugned order dated 12.04.2016 passed by the respondent - SSRD in Revision Application No. 41/2013 is hereby quashed and set aside. Simultaneously, the order dated 21.07.2016 passed by the respondent - Collector is also set aside. Therefore, the respondent - Collector shall decide the Revision Application filed by the petitioner bearing No. R.R.T. Rivi. Case No. 165/2014-15, in which, the petitioner has challenged the order dated 18.12.2014 passed by the Deputy Collector in accordance with law on its own merits without being influenced by the order dated 12.04.2016 passed by the respondent - SSRD, which is set aside in this petition. Rule is made absolute to the aforesaid extent.