Hamirbhai Kuberbhai Solanki vs State Of Gujarat
2021 Latest Caselaw 15305 Guj

       C/LPA/847/2021                                 ORDER DATED: 29/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO.            847 of 2021

       In R/SPECIAL CIVIL APPLICATION NO. 13556 of 2020

                                With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
             In R/LETTERS PATENT APPEAL NO. 847 of 2021
==========================================================
                        HAMIRBHAI KUBERBHAI SOLANKI
                                   Versus
                              STATE OF GUJARAT
==========================================================
Appearance:
BHOOMI M THAKORE(6237) for the Appellant(s) No. 1
MR. HARSH K THAKAR(7172) for the Appellant(s) No. 1
 for the Respondent(s) No. 2,3,4
MEET THAKKAR, AGP for the Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
           R.M.CHHAYA
           and
           HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 29/09/2021

                        ORAL ORDER

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE R.M.CHHAYA)

1. Heard Ms. Bhoomi Thakore, learned advocate for the appellant and Mr. Meet Thakkar, learned AGP for the respondents.

2. Feeling aggrieved and dissatisfied by the judgment and order dated 02.03.2021 passed by the learned Single Judge (Coram :A.J. Shastri, J.), the present intra court appeal is filed under clause 15 of the Letters Patent.

3. The following facts emerge from the record of

C/LPA/847/2021 ORDER DATED: 29/09/2021

the appeal -

3.1 It is the case of the appellant that land bearing Survey No. 227 part admeasuring 6 gunthas situated at village Nichi-Mandan, Taluka, Morbi, District Morbi was allotted to the father of the appellant Hamirbhai Kuberbhai on Santhani vide order dated 31.01.1968. Pursuant to such allotment, an entry being Entry No. 658 was mutated on 20.09.1968. The record indicates that the father of the appellant, Hamirbhai Kuberbhai, gave resignation from 4 gunthas of land before the Mamlatdar, which culminated into order dated 12.08.1970 and based upon the said order, entry no. 746 came to be mutated in the revenue record on 13.01.1971. The facts reveal that after the order was passed by the Mamlatdar, on 12.12.1970, the Deputy Collector passed an amendment order dated 09.04.1971 whereby 2 gunthas of land was confirmed out of 6 gunthas and accordingly an entry being entry No. 755 came to be mutated on 04.09.1971.

3.2 Even Ms. Thakor, learned counsel appearing for the appellant, on inquiry made by the Court, submitted that the appellant was a minor in the year 1971. The record indicates somewhere in the year 2010, the appellant filed representation before the Mamlatdar and sought for amendment of the entry being Entry No. 746, whereby the rajinama given by the father of the appellant, was given effect to. The said representation was disposed of by the Mamlatdar on 12.12.2010. Almost 5 years thereafter, the appellant preferred an appeal as provided under Rule

C/LPA/847/2021 ORDER DATED: 29/09/2021

106 of the Gujarat Land Revenue Rules, 1972, which came to be registered as case no. 172 of 2011-2012. However, the appeal came to be rejected. Feeling aggrieved by the said order passed by the Deputy Collector, the appellant preferred revision before the District Collector and the same was rejected on the ground of limitation as well. Feeling aggrieved by such orders, the appellant preferred a Revision Application as provided under Rule 108 (6)(a) of the Rules, which came to be registered as MVV/HKP/MRB/03 of 2019. The learned Secretary, after verifying the record, as the fact finding authority, dismissed the Revision filed by the appellant. All these orders were impugned in the writ petition filed by the appellant being SCA No. 13556 of 2020. The learned Single Judge after hearing the parties, was pleased to dismiss the petition and hence, this appeal.

4. Ms. Bhoomi Thakore, learned counsel appearing for the appellant has contended that the rajinama is not brought on record and hence, the very genesis of the entry in question is doubtful. Ms. Thakore, vehemently submitted that the father of the appellant had never given rajinama and therefore, the impugned entry is wrongly made. An attempt was also made to contend that the appellant is in possession of the land in question and therefore, appropriate directions be given to re-grant the land. On the aforesaid grounds, it was contended by Ms. Thakore that the appeal requires consideration.

5. No other or further submissions have been made.

C/LPA/847/2021 ORDER DATED: 29/09/2021

6. We have gone through the record of the appeal and have also considered the submissions of Ms. Thakore. The authorities below have based upon the records, have recorded a finding that the rajinama was given by the father of the appellant and the same was considered. Notice under section 135(D) of the Gujarat Land Revenue Code was also on record and before the mutation of the entry in question and notice was also given to Shri Hamirbhai Kuberbhai on 25.08.1970 and has come to the concurrent finding of fact that the rajinama was given. The learned Single Judge has examined the matter in detail and very succinctly observed thus -

"5. Having heard learned advocates for the parties and having gone through the material on record, it appears that the entry was made on the basis of the Rajinama, which was specifically stated to have been given by deceased Hamirbhai Kuberbhai and based upon such Rajinama, the entry came to be certified on 13.1.1971. It further appears that deceased Hamirbhai Kuberbhai appears to have not raised any objection with regard to such Rajinama during his lifetime, and it is the legal heir of the said deceased who has made an attempt in 2015 to challenge the said entry. Hence, there is enormous delay in challenging the said entry which has been certified years back. Apart from that, the reasons which have been assigned by the authorities also appear to be based upon the material on record and there appears to be proper application of mind on the part of the authority and as such, since the conclusion arrived at cannot be said to be perverse in any form, this Court is not inclined to substitute any finding in absence of any distinguishable circumstance.

C/LPA/847/2021 ORDER DATED: 29/09/2021

6. From the reading of the reasons assigned by the Revisional Authority, it appears that the said factum of Rajinama of deceased Hamirbhai Kuberbhai was examined with proper application of mind. It was noticed by the authorities that even Section 135D notice was also served upon the deceased and acknowledgment was also found dated 25.8.1970 and when that be so, it is not proper on the part of the petitioner to raise such grievance after unreasonable period of time. From the record, it further appears that there is some development which took place in the intervening period, for which the entry was also effected, being Entry No.755, and the said circumstance having been considered appropriately by the authorities below, this Court is not inclined to exercise the extraordinary jurisdiction, particularly when the orders are passed well within the bounds of the authority and as such, such concurrent finding of facts is not inclined to be disturbed looking to the peripheral scope propounded by the Apex Court in catena of decisions with respect to exercise of extraordinary jurisdiction. The order in question, as such, cannot be said to be invalid in any form."

7. It is a matter of fact that when the entry in question was made, the appellant was a minor and now after attaining majority, after 45 years, the appellant cannot be permitted to question the validity and existence of rajinama. The father of the appellant has never come forward and objected to the same. As far as the contention that the possession is with the appellant is concerned, is also of no avail as 2 acres of land has been retained by the original allottee and that was not the subject matter to be examined by the authorities below as well as the learned Single Judge and therefore, it is

C/LPA/847/2021 ORDER DATED: 29/09/2021

not necessary for this Court to examine the said issue at all. We are in total agreement with the observations made by the learned Single Judge. The appeal therefore fails and is hereby dismissed. However, there shall be no order as to costs.

8. As the appeal is dismissed, the connected Civil Application also would not survive and the same stands dismissed.

(THE ACTING CHIEF JUSTICE R.M.CHHAYA, J)

(BIREN VAISHNAV, J) BIJOY B. PILLAI