Heir And Legal Representative Of ... vs State Of Gujarat
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          C/SCA/23133/2017                                              ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 23133 of 2017

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HEIR AND LEGAL REPRESENTATIVE OF DECD. ARVINDBHAI HIRABHAI
                          PATEL
                          Versus
                STATE OF GUJARAT & 4 other(s)
================================================================
Appearance:
MR PRAKASH JANI, Senior Advocate assisted by MR. ARCHIT P
JANI(7304) for the Petitioner(s) No. 1,1.1
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1
MR AMIT N PATEL(2749) for the Respondent(s) No. 5.1
NOTICE SERVED(4) for the Respondent(s) No. 1,2,3,4
NOTICE UNSERVED(8) for the Respondent(s) No. 5.2,5.3,5.4
================================================================

 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                 Date : 16/02/2021

                                  ORAL ORDER

Heard learned senior advocate Mr.Prakash Jani assisted by learned advocate Mr.Archit Jani for the petitioner, learned Assistant Government Pleader Mr.Ishan Joshi for the respondent­State and learned advocate Mr.Amit Patel for the respondent No.5.1 through video conference.

1. Rule. Learned Assistant Government Pleader Mr.Ishan Joshi waives service of notice of rule on behalf of the respondent No.1 and learned advocate Mr.Amit Patel waives service of notice of rule on behalf of the respondent No.5/1.

2.   By       this       petition      under         Article        227       of       the
Constitution of India,             the petitioner has challenged the





             C/SCA/23133/2017                                                      ORDER

order dated 4th October, 2017 passed by the respondent No.1­Special Secretary, Revenue Department (Appeals) (SSRD) in Revision Application No.323 of 2016 confirming the order passed by the Collector dated 03.05.2016 in Revision Application No.123 of 2015 and order dated 03.12.2014 passed by the Deputy Collector in RTS Appeal No.261 of 2013 whereby, order dated 26th March, 2012 passed by the Mamlatdar in RTS Appeal No.445 of 2011 was quashed and set aside.

3. The short facts of the case are that the land situated at block no.29, Village: Aslali, Taluka: Daskroi, District: Ahmedabad was owned by deceased husband of the petitioner i.e. Arvindbhai Hirabhai Patel.

4. It is the case of the petitioner that the land to the extent of 1417 Sq.Mtrs was sold to the late father of the respondent Nos.5/1 to 5/4­Arvindbhai Chaturbhai Patel for consideration of Rs.35,00,000/­. According to the petitioner sale­deed was executed with respect to the said parcel of land on 12.03.2010 disclosing sale consideration of Rs.7,08,500/­ only but the petitioner was not paid any amount except Rs.1,51,000/­. It appears that second sale­deed was executed on 29th April, 2010 of the land admeasuring 1416 Sq.Mtrs wherein also the sale consideration was shown amounting to Rs.7,08,500/­ but according to the petitioner, no amount except Rs.1,51,000/­ was paid to the petitioner.

5.     As      per        the     revenue         records          entry       no.11113          was
mutated       in     village          form     no.6         on    27.01.2009         for     block






          C/SCA/23133/2017                                                 ORDER

no.29 and entry no.11200 was mutated in the village form no.6 showing the name of the late husband of the petitioner as owner of the block no.29.

6. As per the Revenue Record entry no.11750 was mutated on 26.11.2010 with regard to the aforesaid two sale­deeds for the land admeasuring 2833 Sq.Mtrs of block no.29 in favour of late Arvindbhai Chaturbhai Patel­father of the respondent Nos.5/1 to 5/4. It appears that thereafter, entry no.11851 was mutated in the record on 20.04.2011 cancelling the entry pursuant to the order of the Mamlatdar dated 26th March, 2012 in view of the objection raised by the petitioner in RTS Application No.445 of 2011.

7. Thereafter, being aggrieved by the order passed by the Mamlatdar dated 26th March, 2012, Arvindbhai Chaturbhai Patel preferred RTS Appeal No.261 of 2013 before the Deputy Collector, which was allowed vide order dated 03.12.2014 by quashing and setting aside the order dated 26th March, 2012 passed by the Mamlatdar.

8. It is the case of the petitioner that no notice of hearing was served upon the petitioner and therefore, the petitioner could not remain present before the Deputy Collector. The petitioner thereafter, preferred a Revision Application No.123 of 2015 before the Collector challenging the order passed by the Deputy Collector wherein, specific contention was raised that the Deputy Collector passed the order dated 03.12.2014 without giving any opportunity of hearing to the petitioner.

          C/SCA/23133/2017                                                 ORDER




However,      the      Collector        vide         order    dated         03.05.2016
rejected      the      revision       application            preferred           by      the
petitioner.

9. The petitioner has also preferred Special Civil Suit No.407 of 2016 before the Court of Principal Senior Civil Judge, Ahmedabad which is pending.

10. The petitioner thereafter, being aggrieved by the order passed by the Collector preferred Revision Application No.323 of 2016 before SSRD which was also rejected by the impugned order dated 04.10.2017 The petitioner has therefore filed this petition.

11. Learned senior advocate Mr.Prakash Jani assisted by learned advocate Mr.Archit Jani submitted that no notice of hearing was received by the petitioner with regard to the hearing of RTS Appeal No.261 of 2013. It was submitted that on perusal of the order dated 03.12.2014, it was mentioned by the Deputy Collector that the other side has not made any submission. The petitioner was respondent No.1 in the RTS Appeal No.261 of 2013.

12. The petitioner thereafter preferred additional affidavit on 7th August, 2020 contending interalia that no notice was issued and order was passed without giving any opportunity of hearing to the petitioner. It was also contended in the said affidavit that the petitioner raised objection before the Collector and SSRD in written submission as well as in oral arguments but the same was not considered. The petitioner therefore applied under the Right to Information Act seeking information with regard to the proceedings before the Deputy Collector.

C/SCA/23133/2017 ORDER

13. Considering the above additional affidavit filed by the petitioner on 7th August, 2020, the respondent No.5/1 filed a reply on 11th August, 2020 contending interalia that prior to passing of the order dated 03.12.2014, the Deputy Collector kept the matter for hearing on 11.08.2014, 25.09.2014 and 10.10.2014 and after hearing, the matter was kept for orders and therefore, the contention raised by the petitioner is contrary to records.

14. In view of the above, learned Assistant Government Pleader Mr.Ishan Joshi was requested to take instructions with regard to issuance of notice by the Deputy Collector and time was sought on 21st September, 2020 and the matter was adjourned to 13th October, 2020.

15. It appears that on 11th January, 2021 it was informed by learned Assistant Government Pleader that a communication of the Deputy Collector dated 12.10.2020 is received by him stating that notice dated 17.07.2014 was issued for fixing the date of hearing for 11th August, 2014 and the said notice was sent through RPAD to the petitioner but the acknowledgment of service is not available on the record.

16. In view of the above statement, this Court passed the following order on 11.01.2020:

"Heard learned senior advocate Mr.Prakash Jani with learned advocate Mr.Archit Jani for the petitioner, learned Assistant Government Pleader Mr.Ishan Joshi for the respondent­State and learned advocate Mr.Amit Patel for the respondent No.5.1 through video conference.

1. Learned senior advocate Mr.Jani invited the attention of

C/SCA/23133/2017 ORDER

this Court to the additional­affidavit filed on behalf of the petitioner on 7th August, 2020, wherein, it is specifically stated that no notice, issued by the Deputy Collector, was ever served upon the petitioner and the Collector and the Secretary Revenue (Appeals) have not taken into consideration the submissions made by the petitioner that no opportunity of hearing was granted by the Deputy Collector to the petitioner and no notice was served upon the petitioner.

2. Learned Assistant Government Pleader Mr.Ishan Joshi states that, though time was taken on 21st September, 2020, to take instructions from the respondent­Deputy Collector, the communication of the Deputy Collector, dated 12.10.2020, is not placed on record along with the affidavit.

3. He therefore, prays for time to file affidavit­in­reply to the additional­affidavit filed on behalf of the petitioner on 7th August, 2020 to show that the notice dated 17.07.2014, fixing the date of hearing on 11.08.2014, was served upon the petitioner by Registered Post with Acknowledgment Due along with outward register, with the signature of the petitioner for service of such notice.

Stand over to 16th February, 2021."

17. Learned Assistant Government Pleader Mr.Joshi in compliance of the aforesaid order has placed on record the affidavit of one Komal B. Patel, Deputy Collector, Daskroi Prant affirmed on 15th February, 2021, which reads as under:

"This further affidavit is being preferred by the answering deponent to comply with the order dated 11.01.2021 whereby the answering deponent had to place on record the communication dated 12.10.2020 and based on which further place on record the notice, dated 17.07.2014, whereby the Petitioner was called for hearing. At the outset, the answering deponent states and submits that letter dated 12.10.2020 which was tendered to the Hon'ble Court is a communication tendered to the office of the Government Pleader which is marked and annexed hereto as Annexure­R1 and the answering deponent states that the Registered Post record is not available with the office of the answering deponent."

18. Thus, form the above affidavit it is clear that there is no record available with the office of the Deputy Collector with regard to issuance of notice dated 17th July, 2014 upon the petitioner. Thus it is not

C/SCA/23133/2017 ORDER

possible to believe the statement made in communication dated 12.10.2020 addressed by the Deputy Collector, Daskroi Prant, Ahmedabdad to the learned Assistant Government Pleader that the notice dated 17.07.2014 was sent to the petitioner through RPAD. Though this Court has directed to produce on record the notice, outward register and the Registered Acknowledgment Due Receipt, only a copy of the notice dated 17th July, 2014 is produced along with the affidavit and no other record is produced.

19. In view of the aforesaid undisputed facts, it is clear that no opportunity of hearing is given to the petitioner by the Deputy Collector while passing the order dated 03.12.2014. This aspect is not considered by the Collector and SSRD and the revision applications filed by the petitioner are rejected by both the authorities.

20. Learned advocate Mr.Amit Patel submitted that the petitioner was aware about the filing of the RTS Appeal by the late father of the respondent No.5/1 before the Deputy Collector. It was further submitted that the mutation entries were passed with regard to the sale­ deeds executed in favour of the late father of the respondent no.5/1 and therefore, the mutation entry is required to be made in the revenue records subject to any civil proceedings. The Deputy Collector has therefore, rightly quashed and set aside the order passed by the Mamlatdar by certifying the entry Nos.11750 and 11851 which are for mutation of the sale­deeds executed in

C/SCA/23133/2017 ORDER

favour of late Arvindbhai Chaturbhai Patel. It was further submitted that the SSRD has considered the entire factual aspect and thereafter confirmed the order passed by the Deputy Collector and the Collector and at the most, such entries would be subject to out come of the civil suit filed by the petitioner.

21. Learned advocate Mr.Patel relied upon the decision of the Apex Court in case of J.R.Jani V/s. Ahmed Ebrahim of Rangoon reported in 1996 (3) GCD 360 (SC) to submit that when notice is issued upon the address available on record and it is not necessary that the same is required to be proved through unserved envelope or acknowledgment and under such circumstances, such notice must be deemed to have been served.

22. On the other hand, learned Assistant Government Pleader Mr.Joshi submitted that as per the instructions and the affidavit filed by the Deputy Collector, no record is available with regard to issuance of notice dated 17.07.2014 though the copy of such notice is available on record.

23. Having heard the learned advocates for the respective parties and having gone through the materials on record, it emerges from the record that though notice dated 17.07.2014 is available, no record is available with regard to issuance of such notice and it is not possible to accept that the notice have been served as held by the Apex Court in case of J.R.Jani V/s. Ahmed Ebrahim of Rangoon (supra). In order to apply the ratio

C/SCA/23133/2017 ORDER

of the judgment of the Apex Court, firstly it is required to ascertain as to whether the notice is issued or not. If there is no record available on file that notice is issued then the aspect of deemed service cannot be applied in the facts of the case.

24. In view of the above fact, without entering into the merits of the matter and only on the aspect of lack of opportunity of hearing granted to the petitioner by the Deputy Collector by passing the order in violation of principles of natural justice, the order dated 03.12.2014 passed by the Deputy Collector confirmed by the Collector vide order dated 03.05.2016 and confirmed by the SSRD vide order dated 04.10.2017 are required to be quashed and set aside and the matter is required to be remanded back to the Deputy Collector to decide the RTS Appeal No.261 of 2013 afresh de­novo.

25. The petition is therefore partly allowed. The impugned order dated 03.12.2014 passed by Deputy Collector in RTS Appeal No.261 of 2013, order dated 03.05.2016 passed by Collector in Revision Application No.123 of 2015 and order dated 04.10.2017 passed by SSRD in Revision Application No.323 of 2016 are hereby quashed and set aside and the matter is remanded back to the Deputy Collector. The Deputy Collector, Daskroi, Ahmedabad is hereby directed to hear the RTS Appeal No.261 of 2013 afresh de­novo after giving an opportunity of hearing to the petitioner and the respondent Nos.5/1 to 5/4 and thereafter pass a reasoned speaking order in accordance with law. It is made clear that this Court has

C/SCA/23133/2017 ORDER

not gone into the merits of the matter and the Deputy Collector is required to pass an order in accordance with law afresh. Such exercise shall be completed within three months form the date of receipt of a copy of this order. Rule is made absolute to the aforesaid extent. No orders as to cost.

(BHARGAV D. KARIA, J) PALAK