Muman Abdulhaq Rajmahammad ... vs Collector
2021 Latest Caselaw 3287 Guj

        C/SCA/528/2015                                 JUDGMENT




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 528 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

==========================================================

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 ?

==========================================================
       MUMAN ABDULHAQ RAJMAHAMMAD MOLPIYA & 5 other(s)
                          Versus
                   COLLECTOR & 2 other(s)
==========================================================
Appearance:
MR ANKIT SHAH(6371) for the Petitioner(s) No. 1,2,3,4,5,6
MR.JAY S SHAH(7244) for the Petitioner(s) No. 1,2,3,4,5,6
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 3
MR ISHAN JOSHI, AGP (1) for the Respondent(s) No. 1,3
MR ABHAYKUMAR P SHAH(3093) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
==========================================================

 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                          Date : 25/02/2021
                          ORAL JUDGMENT

1. Heard learned advocate Mr. Jay Shah for the petitioners, learned Assistant Government Pleader Mr. Ishan Joshi for respondent Nos. 1 and 3-State through video conference.

C/SCA/528/2015 JUDGMENT

2. Rule returnable forthwith. Learned Assistant Government Pleader waives service of notice of rule on behalf of respondent Nos. 1 and 3.

3. The Special Secretary, Revenue Department is joined as respondent No.3 whose order is under challenge. Hence, respondent No.3 is ordered to be deleted.

4. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the orders dated 29.11.2014/03.12.2014 passed by the Special Secretary, Revenue Department (Appeals) confirming the order passed by the Collector dated 21.08.1989 granting N.A. Permission. It is the case of the petitioners that the father of the petitioners and respondent No.2 were the owners of the land bearing Revenue Survey No. 55/1 situated at Village-Dindrol, Tal. Sidhpur, Dist. Patan admeasuring 3449 sq.mtrs. An entry No. 1621 was mutated in favour of the petitioners and respondent No.2 in the year 1989. An application was made to convert the land in question to non-agriculture land and vide order dated 21.08.1989, the Collector granted N.A.permission.

5. It is the case of the petitioners that in the year 2006, respondent No.2 by committing a fraud mutated Revenue Entry No. 2899 stating that the land has been given to respondent No.2 in family distribution and as the petitioners and respondent No.2 are real brothers and as such, taking

C/SCA/528/2015 JUDGMENT

advantage of cordial relationships between them, respondent No.2 is alleged to have committed a fraud. Thereafter, the petitioners came to know about such Entry No. 2899 in the year 2010. The petitioners therefore preferred Revision Application No. 357 of 2010 for quashing and setting aside the Entry No. 2899 as the said entry was passed without following due process of issuance of notice under section 135D of the Gujarat Land Revenue Code,1989. The Deputy Collector, by order dated 13.08.2010, remanded the matter back to the Mamlatdar for taking afresh decision. Respondent No.2 challenged order of the Deputy Collector before the Collector in RTS Revision No. 61 of 2010 which was allowed by the Collector setting aside the order passed by the Deputy Collector. It appears that the petitioners also challenged the order of N.A. by RTS Revision No. 39 of 2011 before SSRD.

6. The stay was granted by SSRD in favour of the petitioners. However, by the impugned order dated 03.12.2014, the revision application filed by the petitioners was rejected and therefore, the petitioners have preferred this petition.

7. This Court issued notice upon respondent-authority vide order dated 16.06.2015. On perusal of the record it appears that Entry No. 2899 was mutated in the revenue records on the basis of the deed of distribution between the parties. However, according to the petitioners, at the time of mutation of Entry No. 2899 in the year 2006, the petitioners were not heard nor

C/SCA/528/2015 JUDGMENT

any notice was given to the petitioners and accordingly, the Deputy Collector, by order dated 13.08.2010 has rightly remanded the matter back to the Mamlatdar to decide afresh. On perusal of the order passed by the Collector as well as the SSRD it appears that both the authorities have not considered the submissions made on behalf of the petitioners and have, on the contrary, taken the fact of passing of N.A. order in the year 1989 to certify the Entry No. 2899 only on the basis of the assumption and presumption.

8. In that view of the matter the petition is allowed. The impugned orders passed by the Collector and the Secretary are quashed and set aside and the order passed by the Deputy Collector is restored to file whereby, the Entry No. 2899 is cancelled and the matter is remanded back to the Mamlatdar to decide afresh. Mamlatdar is therefore, directed to decide the Entry No. 2899 afresh after giving opportunity of hearing to all concerned and such exercise shall be completed within three months from the date of receipt of this order.

9. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J) JYOTI V. JANI