Heirs Of Decd. Musasha Remansh vs State Of Gujarat
2021 Latest Caselaw 4518 Guj

           C/SCA/6686/2015                                                ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6686 of 2015

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             HEIRS OF DECD. MUSASHA REMANSH & 4 other(s)
                               Versus
                    STATE OF GUJARAT & 5 other(s)
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Appearance:
MR HM PRACHCHHAK(1076) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,1.5,2,2.1,2.1.1,2.1.2,2.1.3,2.1.4,3,4,5
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 6
MS SHRUTI PATHAK, AGP for the Respondent(s) No. 1
MR ASHISH H SHAH(2142) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,3,4,5
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 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                   Date : 22/03/2021

                                    ORAL ORDER

1. Heard learned Senior Advocate Mr. Mehul Shah assisted by learned advocate Mr. H.M. Prachchhak for the petitioners, learned advocate Mr. Ashish H. Shah for respondent no.2 and learned Assistant Government Pleader Ms. Shruti Pathak for the respondent­State through video conference.

2. By this petition under Article 227 of the Constitution of India, the petitioners have prayed for the following reliefs :

"(A) YOUR LORSDHSIPS, be Pleased to admit this Special Civil Application in the interest of justice and equity.

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(B) YOUR LORDSHIPS, be pleased to call for the records and proceedings of Land/3/R.R.T Revision/74/72/2014 from the office of the Respondent No.4 and 3 respectively and after perusing the same, may be pleased to quash and set aside impugned orders dtd. 24.02.2015 and 23.02.2012, in the interest of justice and equity;

(C) YOUR LORDSHIPS, be pleased to stay the implementation, operation and execution of the impugned order dtd.24.02.2015 and 23.02.2012 passed by respondent no.4 and 3 respectively, pending the hearing, admission and final disposal of this petition, in the interest of justice;

(D)YOUR LORDSHIPS, be Pleased to grant such other and further relief/s deem just and proper in the interest of justice."

3. It is the case of the petitioners that they are the owners and the occupiers of parcel of land bearing City Survey no. 1962 to 1971 and 1973 to 1976 of Kodinar, Taluka Kodinar, District Gir­ Somnath, having Occupancy Certificate (Sanad) of the respective parcels of land. It appears that respondent no.2 Kodinar Nagarpalika issued show cause notice dated 7.4.2006 calling upon the petitioners to produce the documents to show the ownership on the land in question. The names of the respective legal heirs of the predecessor­ in­title are recorded in City Survey office. In the year 1995, the petitioners submitted plan to develop the land in question which was granted in the year 1997 and the petitioners have constructed 25 shops over the land in question.

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The petitioners preferred Special Civil Suit No. 18/2006 in the Court of Senior Civil Judge, Veraval challenging action of the respondent Nagarpalika which was decreed in favour of the petitioners on 30.6.2009 against which First Appeal No. 2991/2009 is filed by respondent no.2 Nagarpalika and the petitioners have also preferred First Appeal Nos. 3604/2009 and 3701/2009. All the three First Appeals are admitted and are pending for final hearing before this Court.

4. It is the case of the petitioners that one Tulsidas Gopaldas Wadhwani and another have filed Special Civil Application No. 11968/2009 seeking direction from this Court that Nagarpalika should follow the guidelines and procedure to dispose of the land in question as if respondent no.2 Nagarpalika was the owner and the occupier. This Court vide order dated 3.2.2010 disposed of Special Civil Application imposing cost of Rs. 10,000/­.

5. It is the case of the petitioner that RRT Appeal No.12­30/2011 was filed challenging the entries in property card in favour of petitioners in 1981. Respondent no.3 Deputy Collector by order dated 23.2.2012 partly allowed the appeal and remanded the matter back to the City Survey Superintendent to decide the application afresh with regard to entries in the property card of

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City Survey No. 1962 to 1971 and 1973 to 1976 after verification of the documents and pending civil proceedings.

6. The petitioners being aggrieved by the aforesaid order preferred RRT Revision Application No. 74­ 72/2014 before the Collector, Gir­Somnath which was rejected vide order dated 24.2.2015.

7. Learned Senior Advocate Mr. Mehul Shah assisted by learned advocate Mr. Prachchhak submitted that the Deputy Collector ought not to have remanded the matter back to the City Survey Superintendent Officer as there is a decree passed in favour of the petitioners by Civil Court which is the subject matter of the First Appeals pending before this Court. It was submitted that the Collector and the Deputy Collector have not considered that the petitioners are in occupation and possession of the land in question for more than 60 years and several entries are made in the property card. It was therefore, submitted that any proceedings before the City Survey Superintendent should be subjected to outcome of the proceedings of the First Appeals pending before this Court and till such First Appeals are disposed of by this Court, proceedings as per the direction of the Deputy Collector should be kept in abeyance.

8. On the other hand, learned advocate Mr. Ashsish

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Shah for respondent no.2 Nagarpalika submitted that the petition should not be entertained because there is only a remand order passed by the Deputy Collector and the petitioners can submit and raise all the contentions which are raised in this petition in the remand proceedings. It was further submitted that the Deputy Collector has directed the office of City Survey Superintendent to consider all the documents on record including the civil proceedings pending between the parties which would also include the First Appeals filed by both the sides before this Court. It was therefore, submitted that no interference may be made in the impugned orders by this Court.

9. Learned Assistant Government Pleader Ms. Shruti Pathak submitted that the petitioners have alternative efficacious remedy to challenge the order passed by the Collector before the Special Secretary, Revenue department (Appeals) and therefore, this petition should not be entertained and the petitioners should be relegated to avail the alternative efficacious remedy.

10. Having heard the learned advocates for the respective parties and having considered the documents on record, the only question which is required to be considered is whether the impugned orders passed by the authorities

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remanding the matter back to the office of City Survey Superintendent to verify the veracity of the entries in the property card of the land in question are just and proper or not?

11. Admittedly the First Appeals arising out of judgment and decree passed by the Court below filed by both the sides with regard to the ownership of land in question are pending before this Court. Therefore, in the interest of justice, without any intervention in the impugned orders, the office of City Survey Superintendent is directed to keep the remand proceedings in abeyance till the First Appeals pending before this Court are decided and thereafter, the remand proceedings to be initiated and completed within a period of three months after giving an opportunity of hearing to both the sides.

12. In view of above, the petition is disposed of with the aforesaid directions. Notice is discharged.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR