Shabbir Abdul Karim Ujadu Since ... vs The Special Secretary (Appeals) ...
2022 Latest Caselaw 10223 Guj

      C/SCA/10292/2022                             ORDER DATED: 16/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 10292 of 2022
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       SHABBIR ABDUL KARIM UJADU SINCE DECD. THROUGH LHS
                             Versus
      THE SPECIAL SECRETARY (APPEALS) REVENUE DEPARTMENT
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Appearance:
M/S.VYAS ASSOCIATES(1559) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6
for the Respondent(s) No. 2,3,4,5,6,7,8
MR. JAYNEEL PARIKH, AGP, for the Respondent(s) No. 1
===============================================================
  CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 16/12/2022
                              ORAL ORDER

[1] This petition under Article 226 of the Constitution of India is filed by the petitioners for following reliefs:-

"(A) That Hon'ble Court may be pleased to issue writ of mandamus and/or any other appropriate writ, direction and order to quash and set aside the order dated 23.03.2021 passed by the Special Secretary Revenue Department (Disputes) in MVV/HKP/Dahod/25/2018 and further be pleased to set aside the order dated 7.4.2017 passed by the Collector, Dahod and order dated 13.4.2016 passed by the Deputy Collector, Dahod as well as order dated 17.9.2014 passed by the Mamlatdar, Dahod;

(B) Pending hearing and final disposal of the petition, Your Lordships be pleased to stay the implementation, operation and execution of the order dated 23.3.2021 passed by the Special Secretary Revenue Department (Disputes) in MVV/HKP/Dahod/[email protected]/201% and order dated 7.4.2017 passed by the Collector, Dahod and order dated 13.4.2016 passed by the Deputy Collector, Dahod as well as order. dated 17.9.2014 passed by the Mamlatdar, Dahod;"

       C/SCA/10292/2022                                       ORDER DATED: 16/12/2022




[2]     The bare facts of the case is pertaining to agricultural lands

being Survey Nos.145/1, 145/2, 146/1, 147, 148, 156, 157/1, 157/2, 157/3, 157/4, 157/5 and 157/6 were thereafter amalgamated as (New) Survey No.136/1 and (New) Survey No.145/1 was given.

[3] The petitioners being the successors and legal heirs of Late Shri Hakim Ujadu and Late Shri Adbul Karim, with a subsisting right, title and interest in the lands bearing Survey Nos.136/1 and 145/1, had therefore preferred an application to mutate their names in the said lands, acting upon pencil Entry No.1228 was mutated on 26.06.2007. The respondent Nos.5 to 7 had objected the certification of Entry No.1228 and therefore, the proceeding was registered as RTS/Dispute No.15 of 2007 before Mamlatdar, Dahod. The Mamlatdar, Dahod vide its order dated 07.09.2007 had denied to certify the Entry No.1228.

[4] There was a challenge to the aforesaid order and remand of proceedings ultimately. In pursuance to the order passed by the Mamlatdar, Dahod, the name of the petitioners as successors of Late Shri Hakik Ujadu were mutated on 05.02.2010 in the revenue record of the lands bearing Survey Nos.136/1 and 145/1 vide entry No.1319.

[5] Again there was objection to such entry and another round of litigation where respondent Nos.5 Shri Kadkiyabhai Mangadiya Sagada and others had objected to the certification of Entry No.1319 dated 05.02.2010, the proceeding which was registered as RTS/Dispute Case No.08 of 2010 before Mamlatdar, Dahod. The Mamlatdar, Dahod vide his order dated 14.03.2011 had directed to certify the Entry No.1319, while overruling the objections.

       C/SCA/10292/2022                                           ORDER DATED: 16/12/2022




[6]     It   is    submitted      that    in    pursuance        to    the     order        dated
02.06.2007         passed by Mamlatdar, the Record of Rights was

prepared and was promulgated. It appears that inadvertently, the name of Shri Hakim Ujadu was deleted from, record of rights with we respect to Survey Nos. 136/1, vide promulgation Entry No.1238 dated 11.8.2007 and a note was appended that land bearing Survey No. 145/1 was subject to restrictions as old tenure. The petitioners had challenged the order dated 02.06.2007 passed by the Mamlatdar, before Deputy Collector, which was withdrawn as the entry was certified.

[7] It is submitted that almost after a delay of one year from the date i.e. 14.3.2011 of the order passed by Mamlatdar and after a delay of two years from the date i.e. 29.11.2010 of the order passed by Deputy Collector, the respondent No.8, Shri Kadkiya Mangadiya Sangada and others had preferred revision, without filing delay condonation application and joining the necessary and proper party to the proceeding, before Collector, Dahod, the proceeding which was registered as RTS Revision Appeal No.19 of 2012. The Collector, Dahod, without considering the record and material facts available on record had partly allowed the revision application and thereby had remanded the proceeding to the Mamlatdar to decide afresh. In absence of application and without condoning the delay in filing the proceeding before it, the Collector could not have assumed jurisdiction to entertain the proceeding and therefore order is without jurisdiction and is vitiated.

[8] Therefore, it appears that upon remand, the Mamlatdar, Dahod vide his order dated 17.9.2014 had set aside the certified Entry No. 1319 while directing the petitioners--opponents therein to

C/SCA/10292/2022 ORDER DATED: 16/12/2022

file an appeal challenging the promulgation Entry No. 1238, if they have any objection. Further it was directed to the Talati and Circle Officer to initiate proceeding for breach of condition for selling the land bearing Survey No.136/1 under unregistered document to the respondents herein by the ancestors of the petitioners, without seeking permission from the competent authority. The order dated 17.09.2014 passed by Mamlatdar, Dahod was challenged by the petitioners by filing appeal before Deputy Collector, Dahod, which was dismissed vide order dated 13.04.2016. The petitioners had preferred revision application before Collector, challenging the order passed by the Deputy Collector, which was dismissed vide order dated 07.04.2017. The order dated 07.04.2017 passed by the Collector, Dahod was challenged by the petitioners before the Special Secretary Revenue Department (Disputes), by filing Revision Application No.MVV/HKP/Dahod/25/2018.

[9] Learned advocate submitted that the petitioners had also preferred Regular Civil Suit No.58 of 2009 before Additional Civil Judge, Dahod against the respondents and others interalia seeking declaration and injunction. Vide judgment and decree dated 09.10.2018, the aforesaid suit came to be dismissed. Therefore, the petitioners had preferred Appeal No.2 of 2019, challenging the said judgment and decree dated 09.10.2018, which is pending.

[10] The Court has heard learned advocates for the parties and perused the documents placed on record. The revenue authorities on the basis of the revenue record has found that in the land bearing S.No.136/1 and S.No.145/1 with regard to heirship entry of Vali Hakim Ujadu vie Entry No.1228 dated 27/06/07 and Entry No.1319 dated 05/02/2010 have been made. Out of that, Entry No.1228 has been cancelled and the Entry no.1319, which is certified relying on

C/SCA/10292/2022 ORDER DATED: 16/12/2022

the Mamlatdar's order No.8/2010 dated 14/03/2011.But on ensuring by record of S.No.136/1 (Old R.S.No.147), the said land was given to Vali Karim vide vide Entry No.297 dated 09/12/1960. The said land has been sold to Hita Ravji. The entry to that effect does not appear in record and Entry No.412 dated 07/02/68 in the land bearing S.No.145/1 (Old S.No.148) has been given permanently to Hita Ravji under Tenancy Act. Therefore, there is no name of Vali Karim in the S.No.145/1. Despite this fact, procedure of entering heirship of Vali Karim Ujadu in land bearing disputed S.No.136/1 and S.No.145/1 has been carried out by the applicants. On instituting R.C.S.No. 58/2009 by the petitioners against the respondents in the Civil Court, Dahod, petitioners' suit was rejected vide order dated 09/10/18 of the Civil Court, Dahod. Further, the respondents have submitted that the suit was rejected vide M.C.A. No.47/10 filed against this order. Mamlatdar, Deputy Collector and Collector have decided and ordered to cancel Entry No.1319 and despite the land bearing S.No.136/1 being prohibited Tenant Act type of tenure it has been sold therefore ordered to initiate proceeding of breach of condition .

[11] Over and above the aforesaid, the SSRD has also observed that the outcome of the civil proceedings ascertaining the rights of the petitioners will ultimately govern the revenue record. Hence, no case is made out for any interference. The petition is dismissed in limine.

(A.Y. KOGJE, J) SIDDHARTH