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2021 DIGILAW 334 (GUJ)

NARANBHAI SAMATBHAI ZALA v. STATE OF GUJARAT

2021-04-22

ASHUTOSH J.SHASTRI

body2021
ORDER : 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has asked for the following reliefs: (A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the impugned order dated 22.02.2021 passed in RRT/Revision Application No.121 of 2019 by the respondent District Collector (at ANNEXUREI hereto); (B) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of the impugned order dated 22.02.2021 passed in RRT/Revision Application No.121 of 2019 by the respondent District Collector (at ANNEXUREI hereto) and also further be pleased to direct the respondent authorities to maintain statusquo with regard to Entry No.5899 for the land in question; (C) …………….” 2. The case of the petitioner is that the dispute has arisen with regard to the land situated at village Pransali, Taluka Sutrapada, District Gir Somnath, having Khata No.784, Revenue Survey No.253/P1. The land in question was originally belonging to one Kamlaben Mohanbhai and others. The aforesaid owners, i.e. Kamlaben Mohanbhai and others, executed a registered sale document on 27.11.1997 in favour of respondent Suresh Harilal Sagar and entry to that effect was also made in the revenue record, being entry No.4527. Aforesaid Suresh Harilal Sagar sold the land in question to Naran Samatbhai Zala, Kanabhai Bhikhabhai Zala and Narsingbhai Kanabhai Kher by registered sale document dated 26.7.2018, for which, entry was made as 5899 mutated on 2.10.2018. This entry No.5899 was made in favour of the purchaser of the land in question which includes the present petitioner. It is the case of the petitioner that an absolute fraudulent and bogus sale document dated 18.6.2003 came to be executed in favour of respondent Pratapbhai Pithabhai Dodiya, which otherwise could not have been executed since the original owners had sold the land way back in November 1997. This transaction had become a subject matter of Civil Suit No.720 of 2005, which was withdrawn and hence, according to the petitioner, as on date, the suit is not pending. This transaction had become a subject matter of Civil Suit No.720 of 2005, which was withdrawn and hence, according to the petitioner, as on date, the suit is not pending. It is the case of the petitioner that respondent Pratapbhai Pithabhai Dodiya further instituted a suit being No.3 of 2013, which came to be initially dismissed for default on 14.7.2015, but then, vide order dated 12.3.2019, the said suit came to be restored to the original file and as such, according to the petitioner, during the period of July 2015 to March 2019, there was no civil suit nor any restraint order of any Court in favour of respondent Pratapbhai Pithabhai Dodiya and as such, since there was no injunction of any Civil Court with regard to mutation of entry, same was executed in favour of the petitioner and other persons. Despite the aforesaid facts, Pratapbhai Pithabhai Dodiya challenged the order of the Assistant Collector before the District Collector by preferring RRT/ Application No.121 of 2019, challenging the entry No.5899, which came to be allowed by the impugned order dated 22.2.2021. The petitioner gave detailed reply in the aforesaid revision application, but according to the petitioner, without considering the reply, an order came to be passed. It is the further case of the petitioner that entry No.5872 has also been mutated in Form No.6 with regard to the aforesaid land in question pursuant to the earlier order of the Mamlatdar dated 4.8.2012 and the said entry came to be challenged before the Assistant Collector, who passed an order on 2.4.2019 in Delay Reg. Application No.,191 of 2018. Agaisnt the said entry No.5872, respondent Pratapbhai Pithabhai Dodiya preferred RRT/ Application No.120 of 2019 which came to be allowed vide order dated 22.2.2021. 3. It is further the case of the petitioner that respondent Pratapbhai Pithabhai Dodiya earlier filed Revision Application No.44 of 2008 before the Special Secretary. Revenue Department, challenging the order of the District Collector dated 8.9.2008, which came to be dismissed on 26.9.2012 and as such, respondent Pratapbhai Pithabhai Dodiya preferred another Revision Application No.11 of 2008 before the Special Secretary, Revenue Department against the interim order of the District Collector, which was dismissed vide order dated 3.12.2018 as having become infructuous. Revenue Department, challenging the order of the District Collector dated 8.9.2008, which came to be dismissed on 26.9.2012 and as such, respondent Pratapbhai Pithabhai Dodiya preferred another Revision Application No.11 of 2008 before the Special Secretary, Revenue Department against the interim order of the District Collector, which was dismissed vide order dated 3.12.2018 as having become infructuous. Said respondent Pratapbhai Pithabhai Dodiya had preferred the appeal before the Special Secretary, Revenue Department against the order of the District Collector, as referred to above, wherein he had challenged the orders of the Mamlatdar and the Deputy Collector, by which entry No.3425 was cancelled. The District Collector was pleased to dismiss the revision application of respondent Pratapbhai Pithabhai Dodiya vide order dated 8.9.2008 and as such, in earlier round, according to the petitioner, it is clearly emerging that the land in question was already sold on 27.11.1997 and as such, there was no clear title of respondent Pratapbhai Pithabhai Dodiya over the land in question. Despite the aforesaid circumstances, according to the petitioner, the District Collector has now no authority to pass any order in favour of respondent Pratapbhai Pithabhai Dodiya and it is submitted that even Suresh Harilal Sagar was an agriculturist and the petitioner is also an agriculturist and therefore, the transaction took place in favour of the petitioner was valid. In any case, according to the petitioner, Civil Suit No.720 of 2005 was already disposed of and as such, ignoring all these aspects, when the District Collector has passed an order, same is without authority of law and without jurisdiction in submission of the petitioner, hence, simply because Civil Suit No.3 of 2013 is pending, the District Collector ought not to have passed the impugnedorder, traveling beyond the relief and as such, by narrating certain complicated factual details, by bypassing the statutory remedy, a petition is brought before this Court in extraordinary jurisdiction to challenge the order passed by the District Collector dated 22.2.2021 in RRT Application No.121 of 2019 by raising multiple grounds. 4. Learned advocate Mr. S.P. Majmudar appearing on behalf of the petitioner has submitted that the order of the District Collector is without jurisdiction and as such, the same deserves to be quashed and set aside. Mr. 4. Learned advocate Mr. S.P. Majmudar appearing on behalf of the petitioner has submitted that the order of the District Collector is without jurisdiction and as such, the same deserves to be quashed and set aside. Mr. Majmudar has submitted that while passing the impugned order, the District Collector has not considered the background and sequence of facts which have been narrated before him and without application of mind, the order came to be passed. The entries which were never the subject matter of challenge also came to be set and aside by the Collector and if ultimately, the facts to be considered, the entry which was made in 1999 is sought to be challenged after several years and that being the position, a contention is raised not to allow this order of the District Collector to sustain in the eye of law. To substantiate his submissions, complicated factual details were tried to be brought before this Court as if the Court is a fact finding authority. But, nevertheless, the basic challenge which is contained in the petition is an order dated 22.2.2021 which came to be passed by the District Collector. No other submissions have been made. 5. As against the aforesaid submissions, on advance copy, learned Assistant Government Pleader Mr. Krutik Parikh appearing on behalf of the State has submitted that the facts are not in narrow compass, but are having chequered history of litigations and multiple transactions and as such, when the suits are pending with respect to the land in question, let appropriate authority created under the Statute be allowed to exercise its jurisdiction. According to Mr. Parikh undisputedly, against the order of the District Collector, there is a specific remedy available to initiate proceedings by further revision before the State authority and in absence of any special distinguishable circumstance, there is hardly any material available to allow the petitioner to bypass the remedy created by the Statute, hence requested not to examine such complicated facts entangled in the litigation in extraordinary jurisdiction. No special circumstance is pointed out to allow the petitioner to bypass the remedy, hence requested to dismiss the petition. 6. No special circumstance is pointed out to allow the petitioner to bypass the remedy, hence requested to dismiss the petition. 6. Having heard learned advocates appearing for the parties and having gone through the material on record, it clearly emerges that the land in question is the subject matter of multiple transactions and the land in question is also entangled in series of litigation and as such, the District Collector while passing the order impugned in the petition has clearly made an attempt to examine the facts at length and arrived at a particular conclusion and apart from that, against these complicated questions of fact, there is a statutory remedy available under the Statute to the petitioner which is not in dispute at all. Even learned advocate Mr. Majmudar has candidly submitted that no-doubt, a remedy is available to the petitioner, but looking to the past controversy of litigation, the Collector could not have passed the order as having no jurisdiction. But, the Court is of the clear opinion that these complicated questions of fact will have to be examined by an authority which is created under the Statute, especially meant for it and the High Court cannot be converted into a fact finding authority, especially when the Statute has created a mechanism to redress the grievance. 7. It is a settled position of law that whenever there is a statutory remedy created by Statute, that has to be respected and High Court cannot usurp the jurisdiction and power which is otherwise vested in an authority below it and therefore, it appears to this Court that there is no special distinguishable circumstance pointed out or a case is made out to allow the petitioner to bypass such statutory remedy. In fact, these complicated questions of fact will have to be gone into appropriately by an authority, which is an remedy available to the petitioner. 8. In fact, these complicated questions of fact will have to be gone into appropriately by an authority, which is an remedy available to the petitioner. 8. In the aforesaid background of facts, when the order in question itself has pointed out that if the parties are having any grievance against the impugned order, a revision application will have to be submitted before the Special Secretary (Appeals), Revenue Department, Ahmedabad within a period of 90 days and therefore, when the facts which are narrated on page 77 onwards of the petition compilation, emerging from the order in question, this Court is of the clear opinion that no case is made out to allow the petitioner to bypass the statutory remedy. Simply because a conclusion is not arrived at in favour of the petitioner, it would not permit the petitioner to straightway rush down to the Court instead of respecting to the special mechanism provided in the Statute. All points including want of authority can also be examined by such statutory authority. 9. The law on the subject is already well defined by catena of decisions and some of the observations contained in the decision in the case of D.N. Jeevaraj Vs. Chief Secretary, Government of Karnataka and others reported in (2016)2 SCC 653 , since considered by this Court while arriving at a conclusion, the Court would like to reproduce some of the relevant observations hereunder:“ 41. This Court has repeatedly held that where discretion is required to be exercised by a statutory authority, it must be permitted to do so. It is not for the courts to take over the discretion available to a statutory authority and render a decision. In the present case, the High Court has virtually taken over the function of the BDA by requiring it to take action against Sadananda Gowda and Jeevaraj. Clause 10 of the lease-cum sale agreement gives discretion to the BDA to take action against the lessee in the event of a default in payment of rent or committing breach of the conditions of the lease cum-sale agreement or the provisions of law.[8] This will, of course, require a notice being given to the alleged defaulter followed by a hearing and then a decision in the matter. By taking over the functions of the BDA in this regard, the High Court has given a complete go-bye to the procedural requirements and has mandated a particular course of action to be taken by the BDA. It is quite possible that if the BDA is allowed to exercise its discretion it may not necessarily direct forfeiture of the lease but that was sought to be preempted by the direction given by the High Court which, in our opinion, acted beyond its jurisdiction in this regard. 43. To this we may add that if a court is of the opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure, it must give its reasons for coming to that conclusion. The reasons given by the court for disabling the statutory authority from taking a decision can always be tested and if the reasons are found to be inadequate, the decision of the court to bypass the statutory authority can always be set aside. If the reasons are cogent, then in an exceptional case, the court may take a decision without leaving it to the statutory authority to do so. However, we must caution that if the court were to take over the decision taking power of the statutory authority it must only be in exceptional circumstances and not as a routine. Insofar as the present case is concerned, the High Court has not given any reason why it virtually took over the decision taking function of the authorities and for this reason alone the mandamus issued by the High Court deserves to be set aside, apart from the merits of the case which we have already adverted to.” 10. In view of the aforesaid background of facts and in view of the fact that the petitioner is not remedyless, and even a point of authority of the District Collector to pass order can be agitated before the higher forum created by Statute, this Court is not inclined to exercise any extraordinary jurisdiction which is equitable in nature. In view of the aforesaid background of facts and in view of the fact that the petitioner is not remedyless, and even a point of authority of the District Collector to pass order can be agitated before the higher forum created by Statute, this Court is not inclined to exercise any extraordinary jurisdiction which is equitable in nature. Since the Court is not entertaining the petition only on that count, the Court has refrained itself from expressing any opinion on merit with regard to any of the issues touching to the merit of submissions as the same may not influence the decision making process by an authority before which the petitioner has to approach, otherwise the issues raised are quite debatable. Hence, this Court is not inclined to accept the petition and the petitioner is at liberty to file an appropriate proceeding before the competent forum as indicated in the impugned order itself to ventilate the grievance. 11. It is needless to state that it is always open for the petitioner to raise all permissible contentions in accordance with law, including the point of authority or jurisdiction of the District Collector and as and when such issues are raised before the authority, the authority will consider the same in right spirit and strictly in accordance with law. 12. With the aforesaid observations, the present petition fails and same is accordingly DISMISSED with no order as to cost.