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2020 DIGILAW 933 (GUJ)

PRAKASH RAMCHANDRA BRAHMBHATT v. DISTRICT COLLECTOR

2020-11-26

ASHUTOSH J.SHASTRI

body2020
ORDER : [1] This petition under Articles 226 and 227 of the Constitution of India is filed for the following reliefs: “13.a) The Hon’ble Court be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction in the nature of certiorari holding and declaring that the order impugned dated 03.01.2014 passed by the Deputy Collector in RTS Appeal No.656/2010 (AnnexureB) and the order dated 04.08.2020 passed by the District Collector in RTS Revision Application No.43/2014 (AnnexureC) are illegal and void and be further pleased to quash and setaside the same. b) Pending admission, hearing and/or final disposal of this petition, this Hon’ble Court may be pleased to stay the order impugned dated 03.01.2014 passed by the Deputy Collector in RTS Appeal No.656/2010 (AnnexureB) and the order dated 04.08.2020 passed by the District Collector in RTS Revision Application No.43/2014 (AnnexureC). c) Such other and further reliefs as this Hon’ble Court may deem just and expedient be granted in favour of the petitioner. d) Costs of this petition be provided for to the petitioner” [2] The case of the petitioner is that the petitioner is the purchaser of the property by registered sale deed, on the basis of which, the entry was effected on 12.04.2010 being Entry No.7353 on the revenue record and the said entry came to be confirmed on 28.04.2010. According to the petitioner, unrelated persons who have only Banakhat in their favour have raised objections and the three respondents namely Mr.Pravinbhai Chandubhai Patel, Rajput Roopsinh Sawaisinh and Bihola Takhatsinh Nathusinh have raised specific objection. However, learned Mamlatdar was pleased to reject their application which proceedings were registered as Case No.248 of 2010. According to the petitioner, despite the aforesaid fact, the learned Deputy Collector as well as the District Collector set aside the order of the learned Mamlatdar which exercise of jurisdiction was completely in violation of principles of natural justice and therefore, the petitioner is constrained to approach this Court by way of present petition. [3] Mr.M.B.Gandhi, learned senior advocate appearing with Mr.Chinmay M.Gandhi, learned advocate for the petitioner has vehemently submitted that the impugned orders passed by the authorities are absolutely unjust, arbitrary and suffers from the vice of nonapplication of mind and in complete disregard to the principles of natural justice. [3] Mr.M.B.Gandhi, learned senior advocate appearing with Mr.Chinmay M.Gandhi, learned advocate for the petitioner has vehemently submitted that the impugned orders passed by the authorities are absolutely unjust, arbitrary and suffers from the vice of nonapplication of mind and in complete disregard to the principles of natural justice. It is settled position of law that the entries will have to be effected on the basis of registered sale transaction and that law is very much settled by the decision of this Court and as such the entry which was effected by the Mamlatdar being Entry No.7353 was perfectly just and proper. Mr.M.B.Gandhi, learned senior advocate has submitted vehemently that some strengths to the law in question have raised an objection and even those objections have also been considered and rejected by the Mamlatdar. Out of the said objectors only Pravinbhai Chandubhai Patel has preferred an appeal before the Deputy Collector being Appeal No.656 of 2010 though this gentleman having no grievance for some unknown reason has raised an issue and the other objectors have not preferred any appeal and despite this fact, the learned Deputy Collector has passed an order setting aside the order passed by the learned Mamlatdar on the basis of some Civil Suit No.197 of 2007 and other allied suits which have nothing to do with the present controversy. [3.1] Mr.M.B.Gandhi, learned senior advocate has further submitted that three suits appears to have been relied upon by the learned Deputy Collector to set aside the order of the learned Mamlatdar. Out of which, one suit bearing Civil Suit No.80 of 2010 has long back being dismissed for default and no process further has been carried out. So far as another Suit No.100 of 2013 is considered and the said suit came to be dismissed under Order 7 Rule 11 of the Code of Civil Procedure. Copy whereof is already attached to the petition compilation and so far as another Suit No.197 of 2007 is concerned, the said suit is merely a suit for seeking injunction filed by one Thakore Lalsinh Ramtujee who was not even the objector to the entry being made in favour of the petitioner and therefore, these suits have nothing do with the present petitioner who is the bona fide and lawful purchaser of the land in question through registered sale transaction. According to Mr.M.B.Gandhi, learned senior advocate, this exercise has been undertaken hastily without application of mind and just in a casual manner, the orders have been passed with no cogent reasons at all. [3.2] Mr.M.B.Gandhi, learned senior advocate has further submitted that a bare reading of the impugned order would make it clear that the authority has not applied its mind, not even dealt with any of the submissions, which have been made by the petitioner and no findings are recorded even around 10 judgments have been relied upon for the purpose of defence by the petitioner but not a single judgment is dealt with and as such this entire exercise by the authority is absolutely not in consonance with the procedure established by law. [3.3] According to Mr.M.B.Gandhi, learned senior advocate that this nondealing of the submission and nonconsideration of the relevant decision and nonassigning of reasons are part and parcel of the principles of natural justice while undertaking a decision making process and as such the order impugned in the petition merely reflects that the same is suffering from the vice of principles of natural justice and nonapplication of mind. The only reason which appears to have been given is the pendency of one of the suit bearing Civil Suit No.197 of 2007, the plaintiff of the said suit has not at all raised any objection alongwith other persons. That being the position, the order impugned in the petition deserves to be quashed. Alternatively Mr.M.B.Gandhi, learned senior advocate has submitted that since the authority has passed an order without complying the principles of Audi Alteram Partam appropriate direction deserves to be issued while setting aside the impugned order and the authority is expected to consider the stand of the petitioner afresh. This alternative submission has been made by Mr.M.B.Gandhi, learned senior advocate with a view to see that the controversy erupted can be set at traced with proper application of mind. Be that as it may, Mr.M.B.Gandhi, learned senior advocate has submitted that the impugned order is violative of principles of naturel justice. This alternative submission has been made by Mr.M.B.Gandhi, learned senior advocate with a view to see that the controversy erupted can be set at traced with proper application of mind. Be that as it may, Mr.M.B.Gandhi, learned senior advocate has submitted that the impugned order is violative of principles of naturel justice. Mr.M.B.Gandhi, learned senior advocate has submitted that the reason which has been given is that the order of injunction which has been issued on 14.07.2010 in one of the suit proceedings, the said injunction is of no consequence since prior to the said injunction order, the entry has not only been effected but has been certified as well. As a result of this, all these material issues having not been considered by the learned Collector while disposing of revision application. The order in question deserves to be set aside. [4] As against this, Mr.Bharat Vyas, learned Assistant Government Pleader has submitted that the petition itself is not maintainable in view of the fact that no fundamental rights of the petitioner are in brief and apart from that there is a specific machinery available with the petitioner to assail the order of the learned Collector. The order impugned in the petition is very much based upon proper consideration of material. That being the petition, it is not open for the petitioner to contend that there is any nonapplication of mind. However, the learned Assistant Government Pleader after submitting has drawn the contention of some of the averments contained in the affidavitinreply precisely paragraph Nos.9, 10 and 11 and thereby, has submitted that petition being devoid of merit, the same be dismissed in the interest of justice. So far as alternative submission is concerned, learned Assistant Government Pleader has left it to the discretion of the Court. [5] Having heard learned advocates appearing for the respective parties and having gone through the material on record, it seems from the impugned order passed by the learned Collector that sole reliance appears to have been given is on the Regular Civil Suit No.197 of 2007 in which according to the learned Collector, an order of injunction is issued on 14.07.2010 and as such by such a brief reason, the entire revision application raising several contentions have been ordered to be filed. Apparently, the issues raised by Mr.M.B.Gandhi, learned senior advocate appears to be justified that no other contentions have been dealt with of the petitioner. It is further reflecting from the order that none of the decisions have also been dealt with while undertaking decision making process and passing an order on 04.08.2020. It is settled position of law that adequate reasons are part and parcel of principles of natural justice and further nondealing of the submission and nonassigning any reason is a justifiable ground for remanding the matter back for reconsideration. The Court has an advantage of few such decisions recent in time delivered by the Apex Court, which are reported in 2019(5) SCC 149 , 2019(5) SCC 337 and 2019(5) SCC 744 . It further appears from the record that to some extent Mr.M.B.Gandhi, learned senior advocate is justified in submitting that the plaintiff of Regular Civil Suit No.197 of 2007 was not an objector since the objections have been raised by three persons namely Mr.Pravinbhai Chandubhai Patel, Rajput Roopsinh Sawaisinh and Bihola Takhatsinh Nathusinh and hence, he is not being the objector and the authority was under an obligation to consider all these issues that real objector has never objected to the order passed by the learned Mamlatdar. [6] Apart from that, it appears from the record that Entry No.7353 has been made pursuant to the registered sale transaction dated 16.04.2010 and this entry which has been effected appears to have been certified on 28.04.2010 whereas the injunction order which has been referred to by the learned Collector in the impugned order is dated 14.07.2010 so effect of such injunction order is also not to be ignored by the learned Collector. All these issues alongwith other contentions which have been raised appears to have not been deal with by the learned Collector. [7] Additionally, Mr.M.B.Gandhi, learned senior advocate is also justified to the effect that a proposition of law laid down by this Court that revenue entry will have to be effected moment the registered sale transaction is taking place. That being a proposition, the same ought not to have been unnoticed by the Collector. [7] Additionally, Mr.M.B.Gandhi, learned senior advocate is also justified to the effect that a proposition of law laid down by this Court that revenue entry will have to be effected moment the registered sale transaction is taking place. That being a proposition, the same ought not to have been unnoticed by the Collector. [8] Conjoint effect of all these materials would lead to a situation where the authority namely the Collector while disposing of revision application has not looked into, has not examined all these issues and has not dealt with all contentions which have been raised in the revision application. So very exercise of jurisdiction can certainly be said to be suffering from the vice of nonapplication of mind and is also violation of principles of natural justice. Considering the aforesaid circumstances, this Court is of the considered opinion that impugned order deserves to be quashed and set aside. However, while disposing of this petition, the Court is of the opinion that fresh exercise will have to be undertaken by the learned Collector for reconsidering the revision application at length submitted by the petitioner. Hence, petition deserves to be disposed of with the following directions which would meet the ends of justice: (i) The impugned order dated 04.08.2020 passed by the respondent Collector, Gandhinagar in Revision Application No.43 of 2014 is hereby quashed and set aside and as a consequence thereof, the respondent Collector is directed to reconsider the revision application and decide the same after granting full opportunity to the petitioner and after dealing with the contentions which may be raised by the petitioner. (ii) This exercise of reconsidering and redeciding the revision application is left it to the discretion of the respondent Collector, Gandhinagar, this Court has not expressed any opinion on merit with regard to contentions of the petitioner and the same will have to be dealt with in accordance with law by the Collector without being influenced by his previous order dated 04.08.2020. (iii) Since the revision application is of 2014, came to be decided just in 2020, more than enough time has been elapsed and therefore, considering this passage of time, the respondent Collector is specifically directed to redecide and reconsider and shall pass a fresh order after assigning proper reasons in accordance with law within a period of three month from the date of receipt of the order but not later than it. [9] With these observations and directions, present petition stands allowed.