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2023 DIGILAW 1148 (GUJ)

BHAGWATIBEN JAMNADAS THAKKAR v. STATE OF GUJARAT

2023-12-04

NIRZAR S.DESAI

body2023
JUDGMENT : NIRZAR S. DESAI, J. 1. Today Civil Application (for vacating interim relief) no. 1 of 2023 is listed on board. However, considering the fact that by hearing such application for vacating interim relief, the Court is required to touch the merits of the matter and therefore, with the consent of the parties, the main matter was taken up and heard finally. 2. By way of this petition, the petitioners have prayed for quashing and setting aside the order dated 06.02.2019 passed by the Secretary, Revenue Department (Appeals) in MVV/HKP/MRB/40/2018 with its consequential effects and has further prayed for quashing and setting aside the order dated 23.08.2018 passed by the Collector, Morbi as well as order dated 30.09.2009 passed by Deputy Collector, as if the order dated 30.09.2009 is never passed. 3. Heard learned Senior Advocate Mr. M.S. Shah with learned advocate Mr. Amar Mithani for the petitioners, learned AGP Ms. Dhwani Tripathi for the respondent-State and learned advocate Mr. Meet Kakadia for learned advocate Mr. S.P. Majmudar for the respondent no. 9. 4. Though the dispute pertains to the orders passed for corrections in the revenue record, what is important to note is the fact that neither the petitioner nor the contesting respondent i.e. respondent no. 9 are the original owner of the land and both are the subsequent purchasers of two adjoining lands for which the acquisition had taken place as back as in the year 1978 and compensation has been received by the petitioners as per the say of learned advocate Mr. Kakadia appearing for the respondent no. 9. 5. The brief facts giving rise to the present petition are stated as under: 5.1. The dispute agitated by way of this petition is in respect of a land bearing Revenue Survey No. 47/1 paiki admeausring Acre 1-17 gunthas situated at Mouje Timbdi, Taluka and District Morbi which was purchased by one Pradyumansinh Bhikubha Jadeja from one Patel Chhagan Sandha by way of registered sale deed executed in the year 1986. The land was later on converted into non-agricultural use for the industrial purpose in the year 1987 and the same was recorded by way of mutation entry no. 304. 5.2. The land was later on converted into non-agricultural use for the industrial purpose in the year 1987 and the same was recorded by way of mutation entry no. 304. 5.2. On 10.03.1987, one Shri Ram Ceramic purchased the subject land from Pradyumansinh Bhikubha Jadeja by way of registered sale deed and the said Shri Ram Ceramic had taken advances from Gujarat State Financial Corporation and hence, one equitable mortgage was created over the land in question. Since, Shri Ram Ceramic could not repay the advances, the possession of the land in question was taken over by Gujarat State Financial Corporation and the property was put to auction and on 21.04.1998, the deceased-petitioner Shri Jamnadas Valamjibhai Thakkar purchased the property in question as he was the successful purchaser and a registered sale deed was executed in his favour on the same date i.e. 21.04.1998. Since then as per say of the petitioner, the possession of the land in question is with the petitioners and the petitioners are having valid title of the land in question. 5.3. In the year 2002, the petitioners had applied for revised N.A. permission for utilizing the land in question for commercial purpose and the same is granted by Taluka Development Officer, Morbi. The National Highway Authority of India acquired the portion of the land from the land in question for which the compensation also was paid to the petitioner by way of an award dated 10.06.2005. 5.4. It is the case of the petitioners that the respondent no. 6 raised the dispute after almost 2 decades stating that the land which was acquired earlier as there were two execution of land at different point of time and though the same has been deducted from the petitioner, the revenue entry gives an impression that the land is deducted from him and therefore, he raised his grievance through Online Swagat Programme to the office of the Hon’ble the Chief Minister. Pursuant to the direction issued in Online Swagat Programme, the Deputy Collector, Morbi without issuance of any notice to the deceased petitioner or without providing any opportunity of hearing passed an order dated 30.09.2009 whereby area of land of the petitioners was deducted at the instance of the respondent no. 6 without any place verification or considering the revenue record or the sale deed executed in favour of the petitioner by Gujarat State Financial Corporation. 5.5. 6 without any place verification or considering the revenue record or the sale deed executed in favour of the petitioner by Gujarat State Financial Corporation. 5.5. The petitioners were unaware about passing of such order and therefore, in the year 2014, when the petitioners came to know about passing of the order dated 30.09.2009, the petitioners challenged the said order by way of Land Revision Appeal Case No. 4 of 2014 before Collector, Morbi. In the said appeal, the delay was condoned by the Collector, Morbi. However, by that time, the land had changed hands and the respondent no. 9 was in possession of the land. Ultimately, the Collector, Morbi after hearing the parties, passed an order dated 23.08.2018 and confirmed the order passed by the Deputy Collector, Morbi dated 30.09.2009. 5.6. The petitioner had challenged the said order by way of Revision Application No. 40 of 2018 and even the Additional Secretary (Appeals) also confirmed the order passed by the Collector and Deputy Collector respectively. Hence, being aggrieved by the same, the petitioners have preferred this petition. 6. In the petition, initially, vide order dated 22.07.2021 while issuing notice, the Coordinate Bench of this Court had stayed the order passed by all the authorities by passing following order: Learned Senior Advocate for the petitioners submitted that the impugned action has been initiated belatedly after 30 years and that too merely on an application in “Swagat” program and without affording any opportunity of hearing to the petitioners, the impugned orders are passed against the interest of the petitioners on the basis that at the time of acquisition of land for construction of road, land bearing survey No. 47/1 was partly acquired. The say of the authority now is that part of land of survey No. 47/1 was acquired from part of land belonging to private respondent Nos. 6, 7, 8 and 9 and was not part of parcel of land which was in the name of predecessor-in-title of the present petitioners. In any case of the matter, the petitioners are in possession since the predecessor-in-title of this land and are utilizing this land. All of a sudden, by the impugned action, the petitioners would stand to lose their land despite there not being any certainty about which part of survey No. 47/1 was part of acquisition. In any case of the matter, the petitioners are in possession since the predecessor-in-title of this land and are utilizing this land. All of a sudden, by the impugned action, the petitioners would stand to lose their land despite there not being any certainty about which part of survey No. 47/1 was part of acquisition. Therefore, merely by changing entries in the revenue record, the petitioners are likely to lost the land which was in possession of their predecessor-in-title and now in possession of the the petitioners for more than 30 years. Issue NOTICE returnable on 02.09.2021. The impugned orders dated 06.02.2010 passed by the Secretary, Revenue Department (Appeals) in MVV/HKP/MRB/40/ 2018, 23. 08.2018 passed by the Collector, Morbi and 30.09.2009 passed by the Deputy Collector, Morbi are ordered to be stayed. Direct service is permitted. 7. In between on 04.01.2023, the Coordinate Bench issued Rule in the matter and confirmed the relief granted in favour of the petitioners till final disposal as none appeared for private respondent and that is how, Civil Application (vacating interim relief) No. 1 of 2023 is preferred and both the Civil Application as well as main matter are taken up for hearing. 8. Learned Senior Advocate Mr. M.S. Shah appearing with learned advocate Mr. Amar Mithani for the petitioners submitted that the petitioners have purchased the land in question by way of an auction from Gujarat State Financial Corporation and the sale deed also executed in favour of the petitioners also mentions the area of the land as per the revenue records which were prior to the corrections made and therefore, as the revenue records matches the sale deed executed in favour of the petitioners who purchased the land as an auction purchaser, all the revenue authorities were not justified in ignoring the aforesaid vital facts and confirming the order passed by the Deputy Collector, Morbi on 30.09.2009. 8.1. Learned Senior Advocate Mr. Shah also pointed out that the respondent no. 6 who was having title of adjusent land at the relevant point of time, did not make any application for correction under Rule 15 of Bombay Land Revenue Rules, 1972 and in fact he simply made an application to Hon’ble the Chief Minister for redressal of his grievance about discrepancy in the revenue entry. 6 who was having title of adjusent land at the relevant point of time, did not make any application for correction under Rule 15 of Bombay Land Revenue Rules, 1972 and in fact he simply made an application to Hon’ble the Chief Minister for redressal of his grievance about discrepancy in the revenue entry. However, without following any procedure or without issuance of any show cause notice, the Deputy Collector upon direction issued from the office of the Hon’ble the Chief Minister, for looking into the grievance without even any issuing show cause notice or putting the petitioners to notice about any Court Commission or ground verification to be carried out, straightway behind the back of the petitioners, carried out the spot inspection and on the basis of the same, without providing the petitioners’ opportunity of hearing, straightway passed the impugned order dated 30.09.2009 and therefore, the petitioners’ version was not considered by the Deputy Collector and the impugned order was passed and thereby, the petitioners’ valuable right of audience was taken away. The petitioners came to know about the said fact only after about only 5 years but by that time, the land had changed hands and instead of respondent no. 6, the respondent no. 9 was the title holder of the land and he was in possession of the land. The fact remains that the basis on which the entry is sought to be corrected was an event which did take place when neither the petitioner nor the respondent no. 9 were having the title or possession of the land in question and therefore, the revenue authorities were not justified in overlooking this vital aspect and believing the version of the respondent no. 6 without there being any material which would establish the fact that there was a mistake in registering the revenue entries as the petitioner’s land though was not deducted. Learned Senior Advocate Mr. Shah further submitted that the respondent no. 6 at the relevant point of time in the year 1978 when the land acquisition took place and award was passed, never questioned the process of land acquisition or deduction of land or any consequential revenue entries. It is only after 31 years that in the year 2009, the respondent no. Shah further submitted that the respondent no. 6 at the relevant point of time in the year 1978 when the land acquisition took place and award was passed, never questioned the process of land acquisition or deduction of land or any consequential revenue entries. It is only after 31 years that in the year 2009, the respondent no. 6 in the name of correction of the revenue entries made an application in Swagat Programme just with a mala-fide intention of grabbing the land of the petitioner, in case, if he succeeds in correcting the entry and thereby, as per the revenue records, the area of the respondent no. 6 is increased, there on the basis of that, after having fencing the chances to expand his land, the aforesaid revenue entry was challenged and sought to be corrected after 31 years. 8.2. Learned Senior Advocate Mr. Shah further submitted that for making necessary corrections, even if the Rule 15 of Bombay Land Revenue Rules provides for correction of revenue entries but before making any such entry, there should be a proper Appeal or Application for correction of entry as per the procedure stated in the Bombay Land Revenue Code and its Rules. Learned Senior Advocate Mr. Shah further submitted that for making necessary corrections, even if the Rule 15 of Bombay Land Revenue Rules provides for correction of revenue entries but before making any such entry, there should be a proper Appeal or Application for correction of entry as per the procedure stated in the Bombay Land Revenue Code and its Rules. In the instant case, no such application was made to Deputy Collector and the application was made in an Online Swagat Programme and therefore, when Deputy Collector exercised the powers under Rule 15 of the Bombay Land Revenues Rules, the Deputy Collector was expected to issue notice to the petitioner who was directly affected by any such prayer but the Deputy Collector failed to issue notice to the petitioner, carried out the spot inspection of land in question in absence of the petitioner and on the basis of the aforesaid factual findings arrived at behind the back of the petitioner by Deputy Collector, the impugned order dated 30.09.2009 was passed and therefore, when initiation of the proceedings itself were bad and those proceedings itself were in violation of principle of natural justice, any orders passed on the basis of such weak foundation and in violation of principle of natural justice, even if the petitioner was heard at a later stage in his own appeal, the same are required to be quashed and set aside as before passing the first order, the petitioners’ important right of hearing was taken away and the petitioners’ right over the land was taken away through quasi-judicial order for which the respondent no. 6 or respondent no. 9 as the case may be was required to file a suit for declaration. 8.3. Learned Senior Advocate Mr. Shah further submitted that in the name of correction of entry, actually the Deputy Collector has crystallized the civil rights of the parties which is not permissible under the quasi judicial proceeding. 8.4. Learned Senior Advocate Mr. Shah further emphasized on the fact that the initiation of proceedings itself was bad as the same was without jurisdiction and miserably time barred as the same were initiated after a period of 31 years and despite that the revenue authorities entertained the application and passed the order against the petitioners, without hearing the petitioners. 8.5. By making the aforesaid submissions, learned Senior Advocate Mr. 8.5. By making the aforesaid submissions, learned Senior Advocate Mr. Shah prayed for quashing and setting aside all the impugned orders. 9. Learned advocate Mr. Meet Kakadia appearing for the respondent no. 9 though could not point out anything from the record to indicate that pursuant to an application made by the respondent no. 6 in Online Swagat Program at any point of time, the petitioners were issued notice or was heard or that spot inspection was carried out in presence of the petitioner. 10. Even learned AGP Ms. Dhwani Tripathi appearing for the respondent-State also from the record could not point out anything to the aforesaid effect. However, both learned advocate Mr. Kakadia as well as learned AGP Ms. Tripathi submitted that at the later stage, when the petitioner preferred an appeal and revision, in both those proceedings, the petitioners were heard and thereafter, the authority has considered the merits of the matter and has confirmed the order passed by the Deputy Collector on 30.09.2009 and therefore, there are concurrent findings of the facts by all the authorities against the petitioners and therefore, in a writ jurisdiction, the same may not be disturbed by this Court. 11. Learned advocate Mr. Kakadia also submitted that there is a suppression on the part of the petitioners as the petitioners have suppressed the fact about acquisition of land in the year 1978 and the fact that the predecessor in tile of the petitioners has pocketed the compensation towards deduction of his land. 11.1. Learned advocate Mr. Kakadia also relied upon the judgment of the Hon’ble Supreme Court in case of Raj Kumar Soni vs. State of Uttar Pradesh, 2007 (10) SCC 635 and by relying upon the aforesaid judgment, learned advocate Mr. Kakadia submitted that a writ cannot be issued in respect of illegality which is already committed to restore the original possession. He further submitted that in case of illegality even the restoration of possession also cannot be ordered by this Court, while exercising the powers under Article 226 of the Constitution of India. 11.2. By relying upon another judgment in case of Dalip Singh vs. State of Uttar Pradesh and Others, (2010) 2 SCC 114 , learned advocate Mr. He further submitted that in case of illegality even the restoration of possession also cannot be ordered by this Court, while exercising the powers under Article 226 of the Constitution of India. 11.2. By relying upon another judgment in case of Dalip Singh vs. State of Uttar Pradesh and Others, (2010) 2 SCC 114 , learned advocate Mr. Kakadia submitted that when there is a suppression on the part of the petitioners and the petitioners have not approached the Court with clean hands, such petition is required to be dismissed. 11.3. However, pursuant to specific query by the Court, learned advocate Mr. Kakadia could not point out to the Court that how the suppression alleged by the respondent no. 9 is material in the facts of the case as according to learned advocate Mr. Kakadia, the petitioner has suppressed the fact about 1978 acquisition of land. It was pointed out to learned advocate Mr. Kakadia that as per the pleadings in the petition, the petitioner has become the owner of the land by way of an auction only in the year 1998 and therefore, how the respondent no. 9 who is also a subsequent purchaser expects the petitioners to dig out the past in respect of land prior to 20 years of him purchasing the land and how such suppression even if it is to be construed as suppression would be material, learned advocate Mr. Kakadia could not reply. 11.4. Further according to learned advocate Mr. Kakadia, the impugned orders are merely in respect of correction of revenue entries and therefore, those orders are administrative orders and therefore, the principle of natural justice is merely a technical formality and therefore, hearing the petitioner is not mandatory as the same would not result into any adverse consequences against the petitioners and therefore, the petition is required to be dismissed. 12. Except the aforesaid submissions, no other submissions were made by either of the sides. 13. I have heard learned counsels for the parties and perused the record. On perusal of record, I found that the first application given by the respondent no. 6 though is not on record, there is a reference about his application in the communication in respect of Online Swagat Program pursuant to which the matter was referred to Deputy Collector, Morbi. 13.1. On perusal of record, I found that the first application given by the respondent no. 6 though is not on record, there is a reference about his application in the communication in respect of Online Swagat Program pursuant to which the matter was referred to Deputy Collector, Morbi. 13.1. A perusal of short order dated 30.09.2009 passed by the Deputy Collector, Morbi categorically indicates that the said order was passed without hearing the present petitioners as the same does not refer to any notice or any submission of the petitioners. 13.2. Further even while passing the first order dated 30.09.2009, the Deputy Collector has completely ignored the fact that there is delay of 31 years. Though, the submission of learned advocate Mr. Kakadia is that the Deputy Collector has exercised the powers under Rule 15 of Bombay Land Revenues Rules, 1973, there is no formal application under the Bombay Land Revenues Rules to make necessary corrections in the revenue records. Further if a correction is made unilaterally without providing any opportunity to the affected party, the said order even if it is termed as administrative order, if it has the potential to affect someone’s civil right, the same would not remain merely as administrative order but is required to be considered as if by way of that order, someone’s civil rights are affected and therefore, even if it is believed that the Deputy Collector has exercised the powers under Rule 15 of the Bombay Land Revenue Rules then also the Deputy Collector was duty bound to issue notice to the petitioners and to hear the petitioners to consider his version and to take spot inspection and measurement of the land in question only in presence of the petitioner and not otherwise. 14. Further at this stage, while the order was being dictated, it was pointed out by learned Senior Advocate Mr. Shah that it nowhere mentions that the order is passed rectifying the entries in exercise of powers under Rule 15 of the Bombay Land Revenues Rules and therefore, in absence of any mention about the relevant provision under which the powers are being exercised by the Deputy Collector, more particularly, when there is no formal application under the Bombay Land Revenue Rules, such order passed by the Deputy Collector is nonest according to learned Senior Advocate Mr. Shah. 15. Shah. 15. On perusal of record, I also found that there is no mention about powers under Rule 15 of Bombay Land Revenue Rules being exercised by the Deputy Collector as the record indicates that the petitioners were not put to the notice at any stage either before the hearing commenced or before the spot inspection and measurement of the subject land was carried out and as can be seen from the order that the respondent no. 6 preferred an application in the online Swagat Program on 24.09.2009 whereas the impugned order was passed on 30.09.2009. Prima facie, I am of the view that usually the office of the Deputy Collector would not decide any such dispute at such a fast speed. Here the speed at which the impugned order is passed bypassing the entire procedure whereby the civil rights in respect of land in question are indirectly crystallized by the Deputy Collector is something that the Court is required to take note of and therefore, coupled with the fact that the impugned order dated 30.09.2009 is passed in those violation of principle of natural justice, the same is required to be quashed and set aside. 16. As the Court is inclined to allow the petition by quashing and setting aside the order dated 30.09.2009 and all the consequential orders confirming the aforesaid order, only on the ground of none-observance of principle of natural justice, the Court deems it appropriate to not to go into the merits of the matter as the matter is required to be remanded back to the Deputy Collector, Morbi for considering the issue afresh. 17. Further as far as the submissions of learned advocate Mr. Kakadia about the fact that the principle of natural justice is merely a technical formality in respect of rectification of entries is concerned, this Court is of the view that when in whichever proceedings if the resultant effect is to affect someone’s civil rights, in that case, even if the impugned order is based on the documentary evidence, the affected party is required to be heard. In the instant case, the revenue entries are sought to be rectified in favour of the respondent no. 9, but, however, the same results into affecting the civil rights of petitioners and therefore, the same is required to be quashed and set aside. 18. Further it was submitted by learned advocate Mr. In the instant case, the revenue entries are sought to be rectified in favour of the respondent no. 9, but, however, the same results into affecting the civil rights of petitioners and therefore, the same is required to be quashed and set aside. 18. Further it was submitted by learned advocate Mr. Kakadia by relying upon the judgment in case of Raj Kumar Soni vs. State of Uttar Pradesh that when an illegal act is committed for rectifying that illegal act, if such actions are challenged under writ petitions, such petitions are not required to be entertained. As far as the aforesaid contention is concerned, in the instant case, though the authorities have proceeded on the ground that at the relevant point of time, at the time of acquisition of land, some illegality was committed. However, how the illegality was committed and why it is sought to be rectified in a revenue proceedings, after a period of 31 years is not explained by any of the revenue authorities. Further the land acquisition proceedings are the proceedings which had been undertaken by altogether a different authority and therefore, if there were any discrepancy or mistake committed by Land Acquisition Authority, whether the revenue authority is empowered to rectify such error or not is also something which the authorities are required to be considered before passing such order or opining about any alleged illegality or error committed by the earlier authorities., before arriving at a conclusion that such procedure adopted by the Land Acquisition Authority was a mistake. 19. According to this Court, in the revenue proceedings, the revenue authorities are not empowered with considering earlier land acquisition proceedings and whether those proceedings were rightly conducted or not, for that, after 31 years, if at all, any grievance is made, such grievance is required to be examined only after hearing the persons affected by such plea. 20. Further as stated in foregoing paragraph, as the petitioner herein became the owner of the land only in the year 1998 and the acquisition for which the suppression is alleged by the respondent no. 9 relates back to the year 1978 and as learned advocate Mr. Kakadia also failed to indicate that how such suppression would be material in the facts of the case, the contention in respect of suppression of material of fact is rejected. 21. 9 relates back to the year 1978 and as learned advocate Mr. Kakadia also failed to indicate that how such suppression would be material in the facts of the case, the contention in respect of suppression of material of fact is rejected. 21. In the result, the petition succeeds and is allowed, the order dated 30.09.2009 passed by the Deputty Collector, Morbi as well as all consequential orders, order dated 23.08.2018 passed by the Collector and order dated 06.02.2019 passed by the Special Secretary, Revenue Department are quashed and set aside. Rule is made absolute. 22. The matter is remanded back to the Deputy Collector, Morbi for considering the issue afresh after issuing notice to all the parties and all the rights and contentions of all the parties including maintainability and limitation of the proceedings initiated by the respondent no. 6 are kept open. 23. In view of disposal of main matter, civil application would not survive and the same is disposed of accordingly.