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2024 DIGILAW 1870 (GUJ)

Babubhai Ramnarayan Acharya v. State Of Gujarat

2024-10-08

NIKHIL S.KARIEL

body2024
JUDGMENT : Nikhil S. Kariel, J. 1. Heard learned Advocate Mr. A.S. Vakil with learned Advocate Mr. Tattvam K. Patel for the petitioners and learned AGP Mr. J.K. Shah for the respondent-State. 2. The present petition is taken up for final hearing in context of an order passed by the Hon'ble Supreme Court dated 20.02.2023 in Special Leave to Appeal (C) Nos. 12962 of 2017, more particularly whereby the Hon'ble Supreme Court had inter alia requested the learned Single Judge to decide the proceedings of the present petition expeditiously preferably within a period of three months from the date of the order. 3. By way of this petition, the petitioners have challenged an order dated 10.03.2017 passed by the City Deputy Collector (West), Ahmedabad, in RTS/Appeal/Case No. 180 of 2016, whereby the Deputy Collector, has inter alia set aside 07 different entries in one single proceeding. 4. At this stage, it requires to be noted that originally, vide an order dated 06.04.2017, a learned Co-ordinate Bench of this Court, had recorded the submissions made by learned Advocate for the petitioners and had listed the matter for hearing on 10.04.2017. It appears that after a detailed hearing on 10.04.2017, the learned Co-ordinate Bench while issuing notice for final disposal making it returnable on 17.04.2017, had granted interim relief in terms of paragraph 7(c) i.e. during pendency of the present petition, the order impugned dated 10.03.2017 would remained stayed. It appears that the said order had been challenged by the respondent-State by preferring Letters Patent Appeal No. 633 of 2017 along with Civil Application No. 5115 of 2017 and whereas the Division Bench of this Court vide an order dated 12.04.2017, while issuing notice to the respondents in the said appeal, had granted interim relief in terms of prayer 5(B) in the Civil Application. 4.1 It appears that the order passed by the Division Bench of this Court had been challenged by the petitioners herein before the Hon'ble Supreme Court and whereas originally vide an order dated 02.05.2017, the Hon'ble Supreme Court while issuing notice, had directed interim suspension of the impugned order. 4.1 It appears that the order passed by the Division Bench of this Court had been challenged by the petitioners herein before the Hon'ble Supreme Court and whereas originally vide an order dated 02.05.2017, the Hon'ble Supreme Court while issuing notice, had directed interim suspension of the impugned order. Later on, vide order dated 20.02.2023, referred to hereinabove, the Hon'ble Supreme Court has inter alia noted the above facts and also further noted that since the main dispute was pending adjudication before the learned Single Judge of the High Court, appropriate directions for deciding the same could resolve the issue. Accordingly as noted hereinabove, the Hon'ble Supreme Court had requested the learned Single Judge of the High Court to decide the proceedings of the present petition expeditiously preferably within a period of three months form the date of the order i.e. 20.02.2023. It also requires to be observed that the Hon'ble Supreme Court vide the said order dated 20.02.2023 had inter alia directed status quo in respect of the entries in the revenue record in respect of the disputed property to be maintained by both the sides. 5. Before adverting to the legal submissions made by learned Advocates for the rival parties, this Court will address an issue with regard to maintainability of the petition raised by learned AGP Mr. J.K. Shah on the ground that the petitioners have an alternative efficacious remedy of challenging the order in question before the appropriate authority as set out in the statute i.e. the Gujarat Land Revenue Code. 5.1 Learned Advocate Mr. A.S. Vakil for the petitioners would vehemently objected to the preliminary objection by relying upon observations of the Hon'ble Supreme Court in order dated 20.02.2023, referred to hereinabove, whereby the Hon'ble Supreme Court had inter alia requested this Court to decide the petition expeditiously. The Hon'ble Supreme Court in the said order has inter alia observed as thus : "Learned counsel for the parties do not dispute the fact that in the facts and circumstances, it would be appropriate that the main dispute itself pending adjudication before the learned single Judge be decided on merits." 5.2 According to learned Advocate Mr. Vakil for the petitioners, having made a submission of the above nature, it would not be open for the respondent-State to have come back before this Court an take a submission that the petitioners have an alternative remedy. Vakil for the petitioners, having made a submission of the above nature, it would not be open for the respondent-State to have come back before this Court an take a submission that the petitioners have an alternative remedy. 5.3 On the other hand, according to learned AGP Mr. Shah, the word used 'on merits" would also include a submission that the petitioners have an alternative efficacious remedy of challenging the order before an appropriate forum. 6. Be that as it may, to this Court, it would appear that the present controversy could be adjudicated relying upon decision of the Hon'ble Supreme Court in case of M/s Godrej Sara Lee Vs. Excise and Taxation Officer-cum-Assessing Authority and Others, reported in 2023 (2) Scale 361 / AIR 2023 (SC) 781 . The Hon'ble Supreme Court in the said decision while explaining exceptions to the self imposed restraint of not entertaining writ petition on the ground of alternative remedy available to the petitioner, has also inter alia reiterated the propositions whereby the High Court could entertain writ petition inspite of availability of alternative remedy. Paragraphs No. 6, 7 and 8 of the said decision being relevant for the present purpose are reproduced hereinbelow for benefit. "6. At the end of the last century, this Court in paragraph 15 of the its decision reported in (1998) 8 SCC 1 (Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others) carved out the exceptions on the existence whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute. The same read as under: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; (iii) where the order or the proceedings are wholly without jurisdiction; or (iv) where the vires of an Act is challenged. 7. Not too long ago, this Court in its decision reported in 2021 SCC OnLine SC 884 (Assistant Commissioner of State Tax vs. M/s. Commercial Steel Limited) has reiterated the same principles in paragraph 11. 8. That apart, we may also usefully refer to the decisions of this Court reported in (1977) 2 SCC 724 (State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482 (Union of India vs. State of Haryana). 8. That apart, we may also usefully refer to the decisions of this Court reported in (1977) 2 SCC 724 (State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482 (Union of India vs. State of Haryana). What appears on a plain reading of the former decision is that whether a certain item falls within an entry in a sales tax statute, raises a pure question of law and if investigation into facts is unnecessary, the High Court could entertain a writ petition in its discretion even though the alternative remedy was not availed of; and, unless exercise of discretion is shown to be unreasonable or perverse, this Court would not interfere. In the latter decision, this Court found the issue raised by the appellant to be pristinely legal requiring determination by the High Court without putting the appellant through the mill of statutory appeals in the hierarchy. What follows from the said decisions is that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available." [Emphasis Supplied] 6.1 Considering the law laid down by the Hon'ble Supreme Court, it would appear that in addition to the other well defined principles, the High Court would be justified in entertaining a writ petition inspite of availability of alternative remedy, on the ground where the controversy is a purely legal one and does not involve disputed questions of fact but involves only question of law. 6.2 Co-relating the facts of the present case from the context of the law laid down by the Hon'ble Supreme Court, it would appear that there are important legal issues raised in the present petition, which are all legal issues and whereas the present petition does not raise any disputed question of fact, and hence, to this Court, it would appear that inspite of an alternative remedy being available to the petitioners, as per the law laid down by the Hon'ble Supreme Court, this Court should take up and decide the present petition. 6.3 Having regard to the observations hereinabove, the preliminary objection raised by learned AGP Mr. Shah is rejected. 6.3 Having regard to the observations hereinabove, the preliminary objection raised by learned AGP Mr. Shah is rejected. 6.4 The questions of law which are being dealt with by this Court in the present petition, being elaborately discussed in the later part of the present decision, this Court is not referring the same at this stage. 7. On merits of the issue, learned Advocate Mr. A.S. Vakil appearing for the petitioners would make the following submissions : (1) That the procedure adopted by the revenue authorities was completely alien to law inasmuch as, the authorities have considered an opinion by the Mamltadar as an appeal and had decided the proceedings. (2) That the respondents had ostensibly followed the procedure as per Rule 108 (5) of the Gujarat Land Revenue Rules, 1972 (for short "Rules 1972") and whereas while the said rule requires an appeal memo to be preferred, no such appeal memo was preferred. (3) That the so called appeal did not contain any application for condoning the delay, more particularly considering that entries which were sought to be set aside were for a period between 1972 to 2011. (4) That certification of each entry would be a separate cause of action and which had to be decided independently and whereas the delay would range from 44 years to 07 years depending upon the entries in question. (5) That the Deputy Collector has set aside 07 different entries, vide a single order, which is also not a procedure available in law. (6) Thus submitting, learned Advocate Mr. Vakil would request this Court to set aside the impugned order passed by the Deputy Collector. 8. On the other hand, this petition is vehemently opposed by learned AGP Mr. J.K. Shah appearing for the respondent-State. Learned AGP Mr. Shah would take this Court in detail through the entries in question and would submit that vide the entries in question starting from entry No. 5031, land which was belonging to the temple, had been mutated in the name of family members of the persons, who were Pujaris of the temple and later the same had been sold to private individual. Learned AGP Mr. Learned AGP Mr. Shah would submit that it is only when the purchasers had submitted an application for grant of NA permission, that the above issues had come to the notice of the State Government and whereas it is under such circumstances that the revenue authorities had taken appropriate steps. 8.1 Learned AGP Mr. Shah would further point out that since the State had itself decided to question the entries in question, therefore, an opinion by the Mamlatdar dated 07.11.2014, was directed to be treated as appeal and whereas the authorities concerned had afforded appropriate opportunity to the petitioners and under such circumstances, the petitioners do not have any grievance to raise. Thus submitting, learned AGP would request this Court not to interfere with the order in question. 9. Heard learned Advocates for the respective parties and perused the documents on record. 10. At the outset, before delving and giving my opinion on the issues raised, it would be worthwhile to refer to certain undisputed facts as under : (i) It appears that the City Deputy Collector vide order impugned dated 10.03.2017 had set aside 07 different entries and whereas entry No. 5031, had been certified in the year 1972 and thus, on the date of the order, there was a delay of approximately 43 years in challenging the same, whereas the last entry of the lot i.e. entry No. 12601, had been certified on 08.03.2011, thus there was a delay of 06 years in questioning the same. (ii) That inspite of delay ranging from 43 years to approximately 06 years, there was no separate application for condonation of delay preferred though, the notice issued to the petitioners dated 07.07.2016 inter alia referred to as to why the delay should be condoned. (iii) Though the order reflects as if it is passed under Rule 108 (5) of the Rules, 1972, yet, while the said rule prescribes an appeal to be preferred, in the instant case, it does not appear that the respondent-State had preferred any appear, rather an opinion dated 07.11.2014 by the Mamlatdar to the City Deputy Collector (West) Ahmedabad, was treated as the appeal memo. (iv) Though 07 different entries were set aside vide the impugned order, neither separate notices nor separate appeals were preferred with regard to each of the entries. 11. (iv) Though 07 different entries were set aside vide the impugned order, neither separate notices nor separate appeals were preferred with regard to each of the entries. 11. Having appreciated the undisputed facts above, now this Court will look into an answer to the issues raised by the parties. 12. On the aspect of the appeal not being in consonance with legal provisions, since the entire procedure carried by the respondent was ostensibly under Rule 108 (5) of the Rules, 1972, the said sub-rule is reproduced hereinbelow for benefit. "108 (5) An appeal against an order under this rules shall, if the order has been made under rule 108 (1) by the Prant Officer or Deputy Collector or Assistant Collector or Superintendent of Land Records or Deputy Director of Land Record or by a revenue officer of a rank not lower than that of a Deputy Collector, ie to the Collector and such appeal shall be presented within sixty days from the date on which the copy of the order was served on the appellant or was otherwise Electronically (by e-mail) intimated to him: Provided that, if the order has been made by the Deputy Mamlatdar, Mamlardar, District Inspector of Land Record or a revenue officer of lower rank than of a Deputy Collector, an appeal shall lie to the Prant Officer or Deputy Collector or Assistant Collector or to the officer appointed for this purpose by the Collector and such appeal shall be presented within sixty days from the date on which the copy of the order was served on the appellant or was otherwise Electronically (by e-mail) intimated to him. Provided further that the appellate authority may after recording its reasons in writing admit an appeal after the aforesaid period of sixty days if it is satisfied that the appellant had sufficient cause for not presenting the appeal within such period. Provided further that the appellate authority may after recording its reasons in writing admit an appeal after the aforesaid period of sixty days if it is satisfied that the appellant had sufficient cause for not presenting the appeal within such period. Provided also that where any appeal against the order of Deputy Mamlatdar, Mamlatdar, District Inspector of Land Records or a revenue officer of lower rank than that of a Deputy Collector are pending before a Prant Officer or Deputy Collector or Assistant Collector or Superintendent of Land Records or Deputy Director of Land Record or by a revenue officer of a rank not lower than that of a Deputy Collector, shall be disposed of by the respective officer within a period of 90 (ninety) days from the date of publication of this notification in the Official Gazette. Subject to the provisions of sub-rules (6) and (6-A), the decision of the appellate authority shall be final. There shall be no appeal against the order of the Collector. No second appeal shall lie in any case." 12.1 Perusal of the said sub-rule inter alia envisages an appeal to be preferred to the Deputy Collector if the order in question has been made by a revenue officer lower in rank to the said authority, to be presented within 60 days from the date on which the copy of the order was served on the appellant and whereas if the appeal is presented after a period of 60 days, then the appellant shall be required to satisfy the appellate authority that there was sufficient cause for not presenting the appeal within the appeal period. 13. Considering the present controversy from the perspective of the Rule 108(5) of the Rules, 1972, this Court is inclined to accept the submissions made by learned Advocate Mr. A.S. Vakil that the procedure followed by the respondent, is in complete breach of Rule 108 (5) of the Rules, 1972. 13.1 As noted hereinabove, as such, there were no separate appeal memos preferred by the Mamlatdar and whereas the Deputy Collector, has adjudicated on an opinion given by the Mamlatdar dated 07.11.2014, which was treated as an appeal. To this Court, it would appear that such a procedure is not contemplated under the Rules. 13.1 As noted hereinabove, as such, there were no separate appeal memos preferred by the Mamlatdar and whereas the Deputy Collector, has adjudicated on an opinion given by the Mamlatdar dated 07.11.2014, which was treated as an appeal. To this Court, it would appear that such a procedure is not contemplated under the Rules. The sub-rule as noted hereinabove, requires an appeal to be preferred by the appellant against the order in question and whereas since the rule is specific with regard to an appeal, then an appeal in its normal and ordinary parlance, which would include an appeal memo with a bare recital of the facts leading to filing of the appeal along with the grounds in support of the prayers and the prayers would be required to be filed. The opinion of the Mamlatdar is completely silent on the said aspects. Again, as noted, communication dated 07.11.2014 by the Mamlatdar to the Deputy Collector, which was treated as an appeal, was an opinion and nothing else and such an opinion could never be treated as an appeal for interfering with entries in question, more particularly when the Deputy Collector was exercising powers under a statute. 14. The impugned order also requires interference on the ground that the impugned order seeks to set aside 07 different entries by a common order. To this Court, it would appear that the entries i.e. entries No. 5031, 8067, 8068, 8800, 8801, 9790 and 12601, were all mutated and certified on different dates. The entries in question being mutated in the revenue record on different stages, inter alia for different purposes, were as rightly pointed out by learned Advocate Mr. Vakil separate causes of action and the same should have been addressed separately and they could not have been addressed vide a common proceeding. As it is, as noted hereinabove, there was no common appeal, rather merely on an opinion of the Mamlatdar, the Deputy Collector had deemed it appropriate to set aside the 07 different entries. 15. Apart from the fact the even if the State wanted to interfere with the entries, separate proceedings with regard to each entry had to be preferred, it would also appear that each entry had been certified on a different date. 15. Apart from the fact the even if the State wanted to interfere with the entries, separate proceedings with regard to each entry had to be preferred, it would also appear that each entry had been certified on a different date. As noted hereinabove, the oldest entry i.e. entry No. 5031 had been certified in the year 1972, whereas the latest entry i.e. entry No. 12601 had been certified in the month of March, 2011. Thus, the delay as noted hereinabove, ranged from a period of 43 years to a period of 06 years while the proceedings had been initiated and it was incumbent upon the respondent authorities to have ensured that an appropriate application seeking for condonation of delay in each of the entries was required to be filed separately, and having not done so, the procedure adopted is in clear violation of Rule 108(5) of the Rules, 1972, which inter alia provides that if the appeal is preferred after a period of 60 days, then the appellant would be required to make out sufficient cause for not presenting the appeal within the said period. Therefore also to this Court , it would appear that the impugned order requires interference. 16. To this Court, it would appear that the entire procedure adopted by the respondent was completely dehors the provisions of the statute, more particularly dehors Rule 108 (5) of the Rules, 1972. To this Court, it would also appear that if the State was intending to take up proceeding against the certain entry/entries, then the State was empowered to do so, by exercising the suo motu power available to it and whereas in the instant case, the State had taken up on itself the role of a party, who would be aggrieved by certification of entries, which certainly the State was not. To this Court, it would appear that there is a marked difference in the State taking up entries in suo motu revision on the ground that procedure had not been followed etc. and the State preferring appeal against certification of entries, more particularly without the State preferring appeal memos and relying upon an opinion by the Mamlatdar as the appeal memo. and the State preferring appeal against certification of entries, more particularly without the State preferring appeal memos and relying upon an opinion by the Mamlatdar as the appeal memo. The State having transposed itself has an ordinary litigant, was required to fulfill all the requirements as per Rule 108 (5) of the Rules, 1972, and whereas since the Deputy Collector was exercising powers under a particular statute, the Deputy Collector was also under an obligation to have ensured that the said statute is not breached, as it has happened in the present case. 17. Again, as has been stated hereinabove, vide the impugned order, the Deputy Collector has set aside 07 different entries and whereas 06 entries are with regard to succession and 7th entry is with regard to sale of the land. From the communication dated 07.11.2014 by the City Mamlatdar, Vejalpur, which has been considered as an appeal, wherein the impugned order is passed, does not in any manner reflect the State's interest being in any manner jeopardized by the entries. In the considered opinion of this Court, even if an appeal in its true sense were to be preferred by the State, the first aspect the State would require to indicate would be the locus of the State to have preferred an appeal against an entry in favour of a private party. 18. At this stage, it is clarified, as observed by this Court hereinabove that while the Land Revenue Code contains various provisions whereby the officers of the State are entitled to take up any entry or order in suo motu revision, but that is exercise of the State's powers to undo any procedural or legal error committed by the subordinate authorities. An appeal by the State would stand on a completely different footing, inasmuch as, the State would be first required to make out a case that it is a person aggrieved by the order or entry in question and therefore, it would have a locus to question the entry or order, as the case may be. The impugned order does not reflect any observation by the Deputy Collector justifying the locus of the State nor has the State been able to prove the locus before this Court. For such reason also it would appear that the impugned order requires interference. 19. The impugned order does not reflect any observation by the Deputy Collector justifying the locus of the State nor has the State been able to prove the locus before this Court. For such reason also it would appear that the impugned order requires interference. 19. Having regard to the observations, discussion and conclusion hereinabove, the present petition succeeds and is hereby allowed. The impugned order dated 10.03.2017 passed by the City Deputy Collector (West), Ahmedabad, in RTS/Appeal/Case No. 180 of 2016 is hereby quashed and set aside. No order as to costs.