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2023 DIGILAW 1043 (GUJ)

Minbai D/o Deshalbhai Jalu W/o. Nathabhai Bhagwanbhai Kothivar v. State Of Gujarat

2023-09-02

NIRAL R.MEHTA

body2023
ORDER : [1] By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has called in question the legality and validity of the order dated 24th January 2023 passed by the Special Secretary, Revenue Department (Appeals) as well as the order dated 26th April 2019 passed by the Assistant Collector, Rajkot (Rural), by which permission under Section 54 read with Rule 18 of the Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands Ordinance, 1949 (for short, “the Ordinance”) came to be granted. [2] The case of the petitioner can be stated as under: [2.1] The land bearing survey No.251 (old survey No.78) along with some other lands bearing survey Nos.100, 142, 116, 155, 78 and 61 paiki of village : Khandheri, Taluka : Padadhari, District : Rajkot were purchased by the father of the petitioner namely Ahir Deshalbhai Jalu and one Ahir Arjan Desa on 4th December 1961. [2.2] On 27th December 1961, Deshalbhai expired leaving behind his widow namely Devuben, sons namely Naranbhai and Karshanbhai and daughter namely Minbai. However, by way of mutation of entry No.79 dated 17th July 1967, the names of Naranbhai and Karshanbhai were posted in the record of right by suppressing the names of Minbai and their mother namely Devuben. However, the mutation of entry No. 79 was not certified as it was represented by Naranbhai and Karshanbhai that they are the registered sale deed holder, but could not produce the said registered sale deed. [2.3] On 11th September 1967, an application was filed for mutation of names of heirs of Deshalbhai. However, in the said application, the name of Minbai was not disclosed. The mutation of entry No.90 was posted on 25th September 1967. At the relevant point of time, since Minbai was minor, therefore, having come to know about fraud committed by her brothers, in the year 2016, Minbai filed RTS Appeal No.38 before the Deputy Collector challenging the mutation of entry No.90. However, the said RTS Appeal was dismissed on the ground of limitation. [2.4] Being aggrieved and dissatisfied by the aforesaid, RTS Revision No.4 of 2018 was filed before the Collector. On 27th September 2018, RTS Revision No.4 of 2018 was dismissed by the Collector. However, the said RTS Appeal was dismissed on the ground of limitation. [2.4] Being aggrieved and dissatisfied by the aforesaid, RTS Revision No.4 of 2018 was filed before the Collector. On 27th September 2018, RTS Revision No.4 of 2018 was dismissed by the Collector. [2.5] Being aggrieved by the aforesaid, Revision being 96 of 2018 was filed by the petitioner before the Special Secretary, Revenue Department (Appeals) and the same was dismissed on the ground of delay. Against the said order, the petitioner filed a petition before the High Court of Gujarat and the said petition was dismissed on 24th September 2019, and consequentially, R/Letters Patent Appeal No.116 of 2020 preferred by the petitioner was also dismissed vide order dated 28th January 2020 passed by the Division Bench of this Court. [2.6] During the pendency of revenue proceedings, respondent No.3 herein - Saurashtra Cricket Association, vide Public Notice dated 20th February 2019, declared its intention to purchase the subject land. On 21st February 2019, the petitioner raised objections. [2.7] Despite the objection was raised by the petitioner, the Saurashtra Cricket Association, on 8th May 2019, entered into transaction and got an agreement to sale executed in its favour. Thereafter, on 5th September 2019, the Saurashtra Cricket Association got the sale deed executed in its favour. [2.8] The petitioner filed a Special Civil Suit No.156 of 2019 against the heirs of Naranbhai and Karshanbhai and the Saurashra Cricket Association for the following reliefs: “(A) Partition of 1/3rd share (B) Declare that will dtd. 12.7.60 is void. (C) Cancellation of agreement to sell dtd. 8.5.19 and sale deed dtd. 5.9.19, and ME No.1469 dtd. 15.10.19. (D) Permanent injunction.” [2.9] On 21st February 2019, the Saurashtra Cricket Association sought permission under Section 54 read with Rule 18 of the Ordinance to purchase the agricultural land. The Deputy Collector and Prant Officer, vide order dated 26th April 2019, granted permission under Section 54 read with Rule 18 of the Ordinance. [2.10] Being aggrieved by the aforesaid, the petitioner approached the Special Secretary, Revenue Department (Appeals) by way of an appeal No.MVV/Gharkhed/RJT/02/2020, however, on 24th January 2019, the said appeal was dismissed. [3] Being aggrieved and dissatisfied by the aforesaid, the petitioner has approached this Court by way of this petition under Articles 226 and 227 of the Constitution of India for the appropriate writ, order or directions. [4] I have heard Ms. [3] Being aggrieved and dissatisfied by the aforesaid, the petitioner has approached this Court by way of this petition under Articles 226 and 227 of the Constitution of India for the appropriate writ, order or directions. [4] I have heard Ms. Trusha Patel, learned advocate for the petitioner and Mr. Rohan Shah, learned A.G.P. for the respondents – State authorities. [5] Ms. Patel, learned advocate for the petitioner, while assailing the impugned orders, has made following submissions: [5.1] Ms. Patel, learned advocate for the petitioner vehemently submitted that the land in question was initially owned by her father, and thereby, though her name is not in the record of right, she has a right, title and interest in the land in question. Accordingly, Ms. Patel has submitted that permission under Section 54 of the Ordinance could not have been granted without hearing the petitioner. [5.2] Ms. Patel submitted that the purchase of land by the Saurashtra Cricket Association cannot be said to be bona fide because before execution of the agreement to sale, the petitioner had raised objections and the said objections were consciously being overlooked by the Saurashtra Cricket Association and with the open eyes, knowing fully well that the revenue proceedings are going on between the petitioner and her brothers, the land was purchased. [5.3] Ms. Patel further submitted that while obtaining permission under Section 54 of the Ordinance, the pendency of revenue proceeding was suppressed, and thereby, the permission under Section 54 of the Ordinance is based on suppression of material fact, which requires to be quashed and set aside. [5.4] Ms. Patel further submitted that even Clause 5 of permission dated 26th April 2019 has not been complied with. Ms. Patel further submitted that under Clause 5 of the permission dated 26th April 2019, it was the mandatory for the Saurashtra Cricket Association to obtain NA use permission within six months, however, the said aspect was not considered by the Special Secretary, Revenue Department (Appeals) and that has resulted into serious miscarriage of justice. [5.5] Ms. Patel has submitted that the impugned order passed by the Special Secretary, Revenue Department (Appeals) is a non-speaking order, and thereby, the same deserves to be quashed and set aside. [6] By making above submissions, Ms. Patel, learned advocate for the petitioner has prayed this Court to allow the present petition in the interest of justice. [7] Per contra, Mr. Patel has submitted that the impugned order passed by the Special Secretary, Revenue Department (Appeals) is a non-speaking order, and thereby, the same deserves to be quashed and set aside. [6] By making above submissions, Ms. Patel, learned advocate for the petitioner has prayed this Court to allow the present petition in the interest of justice. [7] Per contra, Mr. J. K. Shah, learned A.G.P. for the respondents – State authorities, while supporting the impugned orders, has made following submissions: [7.1] Mr. J. K. Shah, learned A.G.P. has vehemently opposed the present petition contending, inter alia, that the impugned orders passed by the revenue authorities are perfectly justified and thereby, may not be interfered by this Court under Articles 226 and 227 of the Constitution of India. [7.2] Learned A.G.P., at the outset, raised serious dispute of locus of the present petitioner to file the present petition challenging the permission granted under Section 54 of the Ordinance. To substantiate the said contention, learned A.G.P. submitted that the land in question is not in the name of the present petitioner. Learned A.G.P. further submitted that as such, in the revenue proceedings, the present petitioner has lost till the Division Bench of this Court. Therefore, according to learned A.G.P., while granting permission under Section 54 of the Ordinance, the authorities cannot be said to be under obligation to afford an opportunity of hearing to the petitioner whose name is not in the revenue record. [7.3] The learned A.G.P. contended that the present petition under Articles 226 and 227 of the Constitution of India, at the instance of the petitioner, is nothing, but a clear abuse of the process of law. The learned A.G.P. submitted that the substantial suit with regard to land in question is pending before the Civil Court, therefore, challenging permission under Section 54 of the Ordinance, by way of this petition, is nothing, but a pressurize tactics adopted by the petitioner. Learned A.G.P. further submitted that what is challenged in this petition is granting permission to sell the land in favour of the Saurashtra Cricket Association. Thus, when the execution of sale deed itself is challenged before the competent Civil Court, challenging the permission would pale into insignificance. Learned A.G.P. further submitted that what is challenged in this petition is granting permission to sell the land in favour of the Saurashtra Cricket Association. Thus, when the execution of sale deed itself is challenged before the competent Civil Court, challenging the permission would pale into insignificance. As such, pursuant to the permission, the sale deed is also executed and the same is subjected to challenge before the Civil Court, thus, the present petition is nothing, but a tool for harassment and exerting pressure. Thus, the learned A.G.P. has requested this Court to dismiss the present petition with exemplary costs. [7.4] The learned A.G.P. submitted that pursuant to the permission dated 26th April 2019, the sale deed is already executed in favour of the respondent No.3, and admittedly, the petitioner has also challenged the sale deed in question. Thus, the learned A.G.P. vehemently submitted that the order of granting permission, which is impugned in this petition, is already lived its life and culminated into sale deed, which is now pending before the Civil Court, therefore, challenging the said permission, by way of this petition, is nothing, but a futility and sheer waste of judicial time. Thus, the learned A.G.P. has requested this Court to dismiss the present petition with costs. [8] By making above submissions, learned A.G.P. for the respondents – State authorities has requested this Court to dismiss the present petition. [9] I have heard the learned advocates appearing for the respective parties and have gone through the material produced on record. No other and further submissions have been canvassed by the learned advocates appearing for the respective parties, except what are stated hereinabove. [10] Having considered the submissions of the learned advocates appearing for the respective parties and having gone through the material produced on record, the undisputed facts emerging are as under: (i) The petitioner is claiming her right, title and interest in the land in question on the assertion that the land was purchased by her father, and thereby, she has equal 1/3rd share in the property in question. (ii) In the revenue proceedings, the petitioner lost upto the Division Bench of this Court, and thereby, admittedly, at the time when the permission under Section 54 of the Ordinance was granted and the sale deed was executed, the petitioner was not shown as owner and/or occupier of the land in question in the revenue record. (ii) In the revenue proceedings, the petitioner lost upto the Division Bench of this Court, and thereby, admittedly, at the time when the permission under Section 54 of the Ordinance was granted and the sale deed was executed, the petitioner was not shown as owner and/or occupier of the land in question in the revenue record. (iii) The permission, under Section 54 of the Ordinance, was granted on 26th April 2019, and pursuant thereto, the registered sale deed has been executed on 5th September 2019. (iv) The suit being Special Civil Suit No.156 of 2019 is pending before the learned Principal Senior Civil Judge, Rajkot seeking, inter alia, partition of 1/3rd share in the property and cancellation of registered sale deed dated 5th September 2019 with permanent injunction. [11] Keeping in mind the aforesaid facts, in my considered opinion, the present petition under Articles 226 and 227 of the Constitution of India at the instance of the petitioner, challenging the permission under Section 54 of the Ordinance is not only misconceived, but appears to be with mala fide intention to exert unnecessary pressure. I say so because pursuant to the permission dated 26th April 2019, when the sale deed was already executed and the same is challenged by the petitioner before the competent Civil Court, I wonder what could be the reasons behind challenging the permission dated 26th April 2019 before this Court, which has already culminated into execution of the sale deed. Once the permission has been granted under Section 54 of the Ordinance and the sale deed is executed and challenged before the competent Civil Court, in that event, in my view, challenging permission under Section 54 of the Ordinance pales into insignificance. When the Civil Court is fully seized of the matter, in that event, the petitioner should have concentrated more on the civil suit rather than filing present misconceived petition before this Court. [12] Even otherwise, while granting permission under Section 54 of the Ordinance, the authorities concerned are not obliged to hold a full fledged inquiry adjudicating rights of the parties. In the instant case, admittedly, name of the petitioner was not on the revenue record, and thereby, while granting permission, if the petitioner was not heard, the authorities concerned cannot be said to have committed any illegality. In the instant case, admittedly, name of the petitioner was not on the revenue record, and thereby, while granting permission, if the petitioner was not heard, the authorities concerned cannot be said to have committed any illegality. At the stage of Section 54 of the Ordinance, when the party like the petitioner, though not on the revenue record, but with their assertion of the right on property, is allowed to be interfered in the proceeding, it would open the Pandora box for those unscrupulous litigations who are “stone pelters”, thus, such situation cannot be allowed to be created. Hence, while granting permission without hearing the petitioner, who is not on the revenue record, cannot be said to be illegal, more particularly, when the petitioner has already availed remedy by filing the civil suit challenging the sale deed, and thereby, mere granting permission under Section 54 of the Ordinance cannot be said to be any prejudice to the present petitioner. When the competent Civil Court is fully seized of the matter and the sale deed is subjected to challenge by way of civil suit, thus, in my view, at this stage, the challenge to the validity and legality of permission granted by the authority under Section 54 of the Ordinance pales into insignificance. Under the circumstances, this Court has gathered an impression that by way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has attempted to misuse the Court proceedings for the reasons best known. Thus, the present petition is not entertained by refraining myself from imposing costs. [13] For the foregoing discussion, present petition is bereft of any merit, and thereby, deserves to be dismissed. Accordingly, present petition is dismissed summarily with no order as to costs.