Lakhabhai Ramjibhai vs State Of Gujarat
2021 Latest Caselaw 2466 Guj

       C/SCA/13770/2006                                  JUDGMENT




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 13770 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
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1   Whether Reporters of Local Papers may be allowed
    to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy of
     the judgment ?

4    Whether this case involves a substantial question of
     law as to the interpretation of the Constitution of
     India or any order made thereunder ?

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                       LAKHABHAI RAMJIBHAI
                                 Versus
                   STATE OF GUJARAT & 9 other(s)
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Appearance:
MR NV SOLANKI(860) for the Petitioner(s) No. 1
MR DM DEVNANI ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR KETAN A DAVE(255) for the Respondent(s) No. 4,4.2,4.3,4.4,4.5
MR VD PARGHI(568) for the Respondent(s) No. 5,8
MR.RAJESH B SONI(2632) for the Respondent(s) No. 10
NOTICE SERVED(4) for the Respondent(s) No. 2,3,6,7
RULE SERVED(64) for the Respondent(s) No.
10,5.1,5.2,5.3,6.1,6.2,6.3,6.4,9
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 17/02/2021
ORAL JUDGMENT

1. The present petition under Articles 226 and 227 of the

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Constitution of India is filed for the purpose of seeking the following reliefs :­

"18(A) To admit this petition and

(B) To issue an appropriate writ of mandamus and/or certiorari or any other appropriate writ, order or directions, in the nature of mandamus and/or certiorari inter alia quashing and setting aside both the impugned orders passed by the learned Collector, Bhavnagar dated 29.11.2004 in Revenue Appeal No. 37/2003­04 and the order of the learned Special Secretary (Appeals) Gujarat State, passed in Revision Application No. 2 of 2005 dated 11.11.2005 and purported to have been issued on 06.12.2005, in view of the aforesaid grounds made out in this writ petition and on appropriate order confirming the order passed by the learned Deputy Collector in Revenue Appeal No. 27/2001­02 dated 17.10.2003 may kindly be passed after calling for the record and proceedings of the Revenue authorities below.

(C) Pending admission, hearing and final disposal of this writ petition, the execution and further implementation of both the impugned orders passed by the learned Collector and the Special Secretary (Appeals) Gujarat State, respectively and as described in para 18(B) herein before may kindly be stayed as and by way of grant of ad­interim relief.

(D) To grant such other and further orders as may be deemed fit and proper in the facts and circumstances of the case may kindly be passed."

2. The facts leading to the rise of the present petition are that petitioner - Lakhabhai Ramjibhai is a blind man by birth and is thoroughly illiterate farmer. The father of the petitioner­ Ramjibhai Khodabhai held almost 282 acres of agricultural land in Village Nastipur, Taluka : Vallabhipur, District : Bhavnagar. The said Ramjibhai Khodabhai died in the year 1978, leaving

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behind approximately 189 acres of agricultural lands. From the said portion, which was held and retained by the present respondent nos. 4 to 9, who are the legal heirs of deceased Ramjibhai Khodabhai out of 189 acres of the said agricultural land, only 18 acres and 34 gunthas had been allowed to be held by the petitioner under his cultivation including one portion of Survey No. 42 paiki, admeasuring 6 acres and 24 gunthas and substantial portion of land out of the aforesaid 189 acres of land were held and retained by all such legal heirs who happened to be brothers. On 06.02.1997 revenue entry no. 1005 was indicating the names of all legal heirs of deceased Ramjibhai Khodabhai including the name of the present petitioner. According to the petitioner, one of such legal heirs of deceased Ramjibhai Khodabhai named as Panchabhai Ramjibhai, who happened to be brother of the petitioner has sold out two (2) fractions of Survey No. 41 paiki to the third party by entering into registered sale transaction and to that effect, on 20.02.1997 a revenue entry was also made being entry nos. 1012 and 1014 respectively. On the same date i.e. on 20.02.1997, some 4 acres of land out of 17 acres of land bearing Survey No. 42 paiki was agreed to be transferred in the name of Kashiben widow of Popatbhai Ramjibhai, by consent of Chhaganbhai Ramjibhai etc., and to that effect, revenue entry no. 1025 was also inserted in the revenue records which also got certified.

2.1. It is the case of the petitioner that for the first time the family arrangement was made amongst the family members with regard to the land bearing Survey Nos. 41 paiki and 42 paiki, pursuant to which, out of total area of 17 acres of Survey No. 41 paiki, parcel of 6 acres and 24 gunthas which was held in actual possession and cultivation of the petitioner, which was agreed to

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be retained in the name of petitioner in revenue record and at that time several other fractions of such survey numbers i.e. Survey Nos.42 paiki and 41 paiki were also agreed to be alloted and mutated in the names of other respective family members and such arrangement was actually mutated between the parties to the proceedings.

2.2. It is further a case of the petitioner that based upon that revenue entry no. 1036 was made in the register of record of rights on 21.07.1997 by the Talati­cum­Mantri and the same was certified by the Deputy Collector, however, without, disclosing and comprising the name of the petitioner. The description as well as the area was also not properly postulated and this has gone in the revenue record without taking note of the petitioner and behind his back and probably on account of physical disability as indicated above. The petitioner has stated in the petition that one of the brothers of the petitioner i.e. Mr. Haribhai Ramjibhai and the nephew of the petitioner namely Keshav Popat, who was a Sarpanch of Village Nastipur at that time had made a mischievous attempt in collusion with Talati­ cum­Mantri of the Village and successfully excluded the name of the petitioner in the said entry in controversy being entry no. 1036 and this according to the petitioner is by taking sheer disadvantage of the petitioner's outright blindness and illiteracy. Subsequently, when the petitioner came to know about this fact that entry no. 1036 has been made in such a manner, he preferred appeal being Appeal No. 27 of 2001­02 before the Deputy Collector, Bhavnagar requesting that in view of the family arrangement, he became the sole occupant of 6 acres and 24 gunthas of land of Survey No. 42 paiki and as such requested that entry no. 1036 be cancelled and simultaneously, include the

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name of the petitioner as sole person with respect to the aforesaid portion of land. The Deputy Collector, heard the parties to the proceedings at the relevant point in time and during the course of hearing, few other brothers confirmed the stand of the petitioner and passed a separate purshis expressing their admission in writing. However, one brother named Haribhai Ramjibhai - respondent no.4 herein has opposed the appeal, but then after hearing and after examining the relevant record, an order came to be passed on 17.10.2003 directing the change in the revenue record by keeping and including the name of the present petitioner alone with respect to holding of 6 acres and 24 gunthas of land of Survey No. 42 paiki as described in the order.

2.3. It is further the case of the petitioner that out of other brothers only one brother named as Haribhai Ramjibhai feeling aggrieved by the same, filed further appeal being Revenue Appeal No. 37 of 2003­04 before the Collector, Bhavnagar and the Collector, Bhavnagar modified the said order of the Deputy Collector in such a manner that the order of the Deputy Collector has virtually stood cancelled outrightly and in addition thereto, a further direction is given in the form of making a new kind of revenue entry altogether which was outside the scope of his examination and thereby has passed the order on 29.11.2004. Since according to the petitioner the said order was beyond the scope of his jurisdiction and illegal, the same came be to challenged by the petitioner by way of Revision Application No. 2 of 2005 under Section 211 of the Bombay Land Revenue Code before the Special Secretary (Appeals). However, according to the petitioner in a mechanical manner without examining any further, the Special Secretary (Appeals) rejected the revision

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application vide order dated 06.12.2005 which is made the subject matter of present petition before this Court. The petitioner had disclosed in the petition itself that out of dire necessity and to earn the livelihood, the petitioner was constrained to sell a portion of land which is the subject matter of controversy to a third party named Bhupatbhai Sursangbhai by executing sale deed dated 06.05.2004, which entry was also mutated in the revenue record in the form of entry no. 1394 and right now the said Bhuptabhai is in possession and cultivation of the land in question and, therefore, he was also impleaded as party to the proceedings as respondent no. 4.

2.4. In the background of the aforesaid fact situation, the petition came to be presented before this Court, wherein on 06.09.2006 notice was issued making it returnable on 26.09.2006 and by way of ad­interim relief, status quo was ordered to be maintained qua possession and maintainability of revenue record. Later on after hearing all the respective sides, a detailed order came to be passed on 19.12.2006 wherein after taking note of the fact that portion of the land has been transferred by the petitioner, the Court was pleased to admit the petition and provided a modified interim relief, which order deserves to be quoted hereunder :­

"1. Upon hearing Mr.Solanki, learned Counsel for the petitioner, Mr.Desai, learned AGP for the State Authorities, Mr.Dave, learned Counsel for respondent No.4 and Mr.Parghi, learned Counsel for respondents No.5 to 8, it prima facie appears that even if the area of the land admeasuring 6 acres and 24 gunthas was treated as being in the share of the petitioner, since he was blind and proper mutation was not there, it is not in dispute that the well and the electricity connections are situated over the particular portion of the land. It also appears that the petitioner has

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transferred the land pending the proceedings to Respondent No.10 and, therefore, whatever is the outcome in the present proceedings will bind Respondent No.10, irrespective of the fact that he was party in the proceedings before the lower authority or not. However, so far as the well and the electricity connection over the well, etc., are concerned, in normal circumstances, they are to be treated as in common qua the original holder of the land of whom the petitioner and the Respondent Nos.4 to 9 are the successors, but it appears that there is no proper inquiry made on the said aspect and, therefore, as such at this stage it is not possible for this Court to express any conclusive opinion regarding the rights of the parties qua the well situated over the land admeasuring 6 acres 24 gunthas.

2. Hence, RULE. Mr. Desai, learned AGP for the respondent State authorities, Mr.Dave, learned Counsel for respondent No.4 and Mr.Parghi, learned Counsel for respondents No.5 to 8 waive service of notice of rule.

3. The ad­interim order granted earlier shall stand continued with the modification and clarification that such would not apply qua the well, electricity connection, motor, etc., situated over the land admeasuring 6 acres and 24 gunthas of Survey No.42. It is further directed that the Dy. Collector, Respondent No.3 herein shall hold an inquiry on the aspects of common rights, if any, of the legal heirs of deceased Ramjibhai Khodabhai qua the well, electricity connection, motor, etc., situated over the land admeasuring 6 acres and 24 gunthas bearing Survey No.42 of Village Nastipur after giving opportunity of hearing to all concerned. The aforesaid inquiry shall be completed preferably within six months from the date of receipt of the order of this Court. The utilization of the well and the rights pertaining thereto, shall continue as may be finalized by the Dy. Collector in the aforesaid proceedings, subject to the clarification that the Dy. Collector shall produce the copy of the report with this Court within a period of one month from the conclusion of inquiry and after the report, upon the objection(s) of either side, this Court may finalize the issue at the time of final disposal.

4. After the report is submitted, it would be open to either side to move this Court for final hearing of the matter."

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2.4. Later on, it appears that the petition was adjourned from time to time and then after impleadment of legal heirs of one of the respondent who died, the petition has come up for consideration before this Court.

3. Learned advocate Mr. N.V. Solanki appearing for the petitioner after drawing attention of the Court to few facts from the record relating to the aforesaid controversy has submitted that the petitioner has not been served with the notice as required under Section 135(D) of the Gujarat Land Revenue Code before making entry no. 1036. Such certification of the entry as such is in gross violation of the mandatory requirement of law and the same is required to be corrected. This aspect though has been specifically brought to the notice of the Collector, the Collector has not taken note of the said circumstance and the contention which has been taken on that issue has been referred to specifically on page 32 and 33 of the petition compilation as also in para 5 on page 47 and thereby learned advocate Mr. Solanki has submitted that the order passed by the Collector is without considering the specific issue raised by the petitioner and thus, the order is required to be quashed and set aside. Additionally, learned advocate Mr. Solanki has submitted that the Deputy Collector after examining at length and after considering the admission of the other brothers and also considering the purshis has specifically passed the order including and inserting the name of the petitioner and the Collector, Bhavnagar has not taken into consideration such detailed exercise of discussion by the Deputy Collector and, therefore, the order of the Collector suffers from vice of non application of mind.

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3.1. Learned advocate Mr. Solanki has submitted that the revisional authority i.e. Special Secretary (Appeals) has also committed the said error while exercising revisional jurisdiction. To substantiate this contention, learned advocate Mr. Solanki has referred to the said admission of other brothers as well as purshis, which has been submitted reflecting on page 66, 67 and 68 of the petition compilation and as such the impugned orders passed by the respondent - authorities are required to be quashed and set aside on this ground alone as are suffering from vice of non application of mind.

3.2. Learned advocate Mr. Solanki has further contended that the respondent - authorities have failed to consider the important documents as indicated above and on the contrary, has travelled beyond the scope of main challenge before them. While contending this, learned advocate Mr. Solanki has drawn attention of this Court to the prayer clause of appeal memo and has contended that this appeal was restricted to examine validity of the order passed by the Deputy Collector and nothing beyond it and there was no reference to any other portion of land which was in controversy and as such, the directions which have been issued by the Collector as also by the revisional authorities are travelling beyond the scope of the challenge and therefore, obviously, without jurisdiction and as such on this ground alone, the impugned orders passed by both the authorities are required to be quashed and set aside. The direction which has been issued by the Collector, and which has been confirmed by the revisional authority is a direction which has nothing to do with the controversy which relates to holding of 6 acres and 24 gunthas of land bearing Survey no. 42 paiki and nothing beyond

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that. The reference which has been made of other portion of land in later part of the order of the Collector is a portion which has already been sold away long back by other brothers and therefore, such kind of exercise of jurisdiction is not only suffering from vice of non application of mind, but without jurisdiction. Hence, on this ground also, the impugned orders are required to be quashed and set aside.

3.3. Additionally, learned advocate Mr. Solanki has submitted that the reasons which are assigned by the Collector as well as by the revisional authorities are contrary on one hand, wherein it has been mentioned in the order that the entry should not have been made whereas, on the other hand a direction is given to suggest of even making a partition indirectly, which is outside the scope of the authority and as such, the orders under challenge are required to be quashed and set aside. In any case, according to learned advocate Mr. Solanki the orders passed by the authorities are travelling beyond the scope of the main relief and hence, the petition be allowed.

4. As against this, learned advocate Mr. Ketan Dave appearing on behalf of the contesting respondents has vehemently contended that whatever exercise is undertaken by the respondent authorities are with proper application of mind and after considering the dispute inter se prevailing between the parties, it has been submitted that in fact it is trying to give a picture that as if the petitioner is left with no other land, but in reality, several lands which are also standing in the joint name of the petitioner as well. In fact, by referring to the disputed entry reflecting on page 29 it has been submitted that out of more than 30 acres of land, the distribution which has taken

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place is only with respect to small parcel of land and rest of the lands are still in the joint name of the petitioner along with other brothers and as such, on the contrary, the Deputy Collector who passed the order directing to insert the name of the petitioner alone in the lands in question is travelling beyond the pleadings and, therefore, in fact the order of the Deputy Collector itself is not sustainable in the eye of law. Learned advocate Mr. Dave has submitted that the relief which has been granted by the Deputy Collector in its order in origin is on the contrary not proper and no such relief could have been granted since the proceedings which have been initiated by the petitioner were initiated without impleading the other affected legal heirs of respective claimants. According to learned advocate Mr. Dave, all legal heirs were not brought on record by the petitioner before the Deputy Collector and, therefore, the order has been rightly set­at­naught by the higher authorities i.e. the Collector as well as the Special Secretary (Appeals). Learned advocate Mr. Dave has as such requested that in case if the original entry no. 1036 itself is not sustainable, the order of the Deputy Collector should have been set aside and as such there is no irregularity or illegality of any nature of the directions issued by the Collector and the same is in the right spirit in which the family arrangement has taken place and, therefore, without being hyper technical, the Collector has exercised the discretion which is confirmed by the revisional authority and no irregularity appears to have taken place.

4.1. Learned advocate Mr. Dave has further contended that the petitioner is having other portion of land in the joint name being legal heirs of deceased Ramjibhai. In fact, Kabuliyatnama which was given by other two brothers are also appearing to be seriously in dispute. It has been contended that Keshavbhai one

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of the brother, in fact has not signed that Kabuliyatnama and to that effect also he has filed an affidavit on page 106 of the petition compilation and the signature which is appearing on page 66, and hence, Kabuliyatnama is seriously in cloud and as such, on the basis of such disputed version, if the revisional authorities have exercised the discretion by issuing direction to take care of the inter se dispute between the brothers, it cannot be said that it is outside the scope of their discretion. However, be that as it may, learned advocate Mr. Dave has further submitted that if in case Section 135(D) notice is not given then, the basic entry is also not sustainable and as such, the order of the Deputy Collector as well is said to be set­at­naught. In fact, the petitioner has made an attempt to take undue sympathy by projecting his infirmity of blindness but such undue sympathy is not possible to be claimed by the petitioner, particularly, when the petitioner has already taken advantage of his portion of land on the basis of his so called claim. That being the position, the petition deserves to be dismissed.

5. The other learned advocates appearing for the contesting respondents i.e. Mr. V.D. Parghi for respondent nos. 5 and 8 and Mr. Rajesh Soni for respondent no. 10 have adopted the arguments which have been canvassed by learned advocate Mr. Dave appearing for contesting respondent no. 4 and have reiterated that the petition be dismissed.

6. As against this, Mr. D.M. Devnani, learned Assistant Government Pleader appearing for the State - respondent has submitted that the petition contains disputed questions of fact and furthermore, is against the concurrence decisions delivered by the respondent authorities and, therefore, no writ jurisdiction

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be exercised in favour of the petitioner. In fact, according to Mr. Devnani, learned Assistant Government Pleader, the conduct of the petitioner itself dis­entitled him from equitable jurisdiction, particularly, in view of the fact that the petitioner has sold away his portion of land to one Bhupatbhai and, therefore, at this instance, the petition is not maintainable. So far as this proposition is concerned, Mr. Devnani, learned Assistant Government Pleader has pointed out that it is settled position of law propounded by the decision of this Court in the case of Rinki Shashikant Gandhi v. Mamlatdar, Vadodara Taluka & Ors., reported in (2012) 2 GLR 1275 that once a person is selling away the land in question, he cannot maintain litigation as he has lost interest, title and that being the position, Mr. Devnani, learned Assistant Government Pleader has requested the Court not to entertain the petition.

6.1. Mr. Devnani, learned Assistant Government Pleader has further drawn attention of this Court to place on record the report dated 09.08.2007 which was prepared pursuant to one of the order passed in the present proceedings by the Court and has indicated that as per the report of the Deputy Collector, Bhavnagar right now Bhupatsing Sursangji is holding the land, is paying the electricity bill with respect to the consumption of electricity while operating the well situated in the land and the said report has indicated that occupant of this land in controversy i.e. 6 acres and 24 gunthas of Survey No. 42 paiki is of the third party. The Court has taken the said report on the record of the case.

7. Having heard the learned counsel for the respective parties and having gone through the detail submissions made by the

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learned advocates appearing for the respective sides, but then the learned advocates appearing for the respective sides have given a specific consent on their instructions and with concurrence have requested the Court that in view of this peculiar background of fact, these issues which are raised in the proceedings are required to be reconsidered and as such have requested the Court to dispose of the petition without expressing any opinion on merit on any of the contentions and the authorities may be directed to give a fresh look to the controversy in question and have accordingly requested to dispose of the petition by a brief order without assigning detail reasons which would meet the ends of justice.

8. In view of the aforesaid circumstance, having concurrence between the learned advocates appearing for the respective parties, the impugned orders dated 29.11.2004 passed by the Collector, Bhavnagar, in Revenue Appeal No. 37/2003­04 as well as order dated 11.11.2005 passed by the Special Secretary, (Appeals) Gujarat State in Revision Application No. 2 of 2005 are hereby quashed and set aside with a consequential direction that respondent no. 2 i.e. the Collector, Bhavnagar is directed to reconsider Revenue Appeal No. 37/2003­04 and decide the same in accordance with law after affording due opportunity to the respective parties to the proceedings and after considering the submissions, shall passed a reasoned order.

8.1. Since the respondent - Collector, is directed to take a fresh decision, this Court has not expressed any opinion on merit with regard to any of the contentions raised by the respective side in the present proceedings. Further it is made clear that it would be open for both the side to raise all the permissible contentions in

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accordance with law before the Collector, and the same shall be considered appropriately in accordance with law.

8.2. It is needless to say that the contentions with regard to the locus which has been tried to be raised in the proceedings, the same shall also be examined by the Collector strictly, in accordance with law.

8.3. The respondent - Collector is directed to take an independent decision without being influenced by any of the observations made in the present proceedings and shall take an independent decision as expeditiously as possible, preferably within a period of six (6) months from the date of the receipt of the writ of this Court.

9. With the aforesaid observations and directions, the present petition stands disposed of. Rule is made absolute to the above extent.

(ASHUTOSH J. SHASTRI, J) /phalguni/