Jagdishbhai Tulsidas Katiya vs The Alt And Mamlatdar
2022 Latest Caselaw 2733 Guj

    C/SCA/14495/2021                             JUDGMENT DATED: 10/03/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 14495 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-

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1     Whether Reporters of Local Papers may be allowed                No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         No

3     Whether their Lordships wish to see the fair copy               No
      of the judgment ?

4     Whether this case involves a substantial question               No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       JAGDISHBHAI TULSIDAS KATIYA
                                  Versus
                         THE ALT AND MAMLATDAR
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Appearance:
MR YM THAKKAR(902) for the Petitioner(s) No. 1,2
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3
SERVED BY RPAD (N) for the Respondent(s) No. 4
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                             Date : 10/03/2022

                             ORAL JUDGMENT

1 By way of this petition, the petitioners

have challenged the order dated 14.7.2020 passed by

the Deputy Collector, Panchmahal at Godhra in

C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022

Ganot/76(A)/Avlokan/Case No.06 of 2020 whereby the

order dated 3.1.2018 passed by the Mamlatdar & ALT,

Panchmahal at Godhra in JMN/84(C) Case No.37 of 2017

was confirmed.

2 By the consent of learned advocates for the

parties, the matter is taken up for final hearing.

Hence, issue Rule. Mr. Krutik Parikh, learned AGP

waives service of notice of rule on behalf of the

State respondents.

3 Short facts of the case are that the

petitioners are husband and wife, who owns a firm

named Radhakrishna Brick Industries. The petitioners

after getting necessary permissions, including the

permission under Section 63AA under the Gujarat

Tenancy and Agricultural land Act, 1948 (for short,

`Tenancy Act') and permission under Section 65 of the

Bombay Land Revenue Code, purchased an agricultural

land and constructed building over the said land and

installed necessary machinery and on completion of

the construction started manufacturing bricks and

other ancillary products.

C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022

3.1 Though necessary permissions were obtained

by the petitioners, they were served with a show

cause notice dated 1.7.2014 issued by the Mamlatdar &

ALT for alleged breach of Sections 63 and 64 of the

Tenancy Act. A second show cause notice was served

upon the petitioners on 31.7.2014. After issuing, in

all, 8 show cause notices, the Mamlatdar and ALT

passed order dated 3.1.2018 vesting the land

belonging to the petitioners into the State

Government.

3.2 The petitioners being aggrieved by the

order dated 3.1.2018 preferred an appeal before the

District Collector under Section 74 of the Tenancy

Act. Simultaneously, the Deputy Collector, Panchmahal

also initiated suo motu revisional proceedings by

exercising powers under Section 76A of the Tenancy

Act and though the appeal preferred by the

petitioner, whereby the very order dated 3.1.2018 was

challenged, was pending, passed a non-speaking ex

parte order dated 14.7.2020 by confirming the order

dated 3.1.2018.

C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022

3.3 The grievance of the petitioners in the

present petition is that when the language of Section

76A categorically provides that in case if no appeal

filed under Section 74,then only the Deputy Collector

can exercise revisional powers and proceedings under

Sections 74 and 76A both cannot go parallel before

the Deputy Collector.

4 Mr. Y.M.Thakkar, learned advocate for the

petitioner, draws attention of this Court to Sections

74 and 76A of the Tenancy Act. Sections 74 and 76A of

the Tenancy Act read as under:

"74:Appeals

(1) An appeal against the order of the Mamlatdar and the Tribunals may be filed to the Collector in the following cases: -

(a) an order under section 4,

(d) an order under section 9,

[(dd) an order under section 9A],

(e) an order under section 10,

(g) an order under section 13,

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(h) an order under section 17,

(i) an order under section 19,

(j) an order under section 20,

(k) an order under section 23,

(l) an order under section 25,

(m) an order under section 29,

[(ma) an order under 8[sub-section (1B) and (2)] of section 32,]

[(mb) a decision under section 31 or 32F, or an order under section 32G]

[(n) an order under section 32K, 32M]

(na) a decision under the proviso to sub-section (4) of section 32T or an order under section 32U,]

(o) an order under section 33,

[(oo) an order under sub-section (5) of section 34,]

(p) an order under section 37,

(q) an order under section 39,

(r) an order under section 41,

[(rr) an order made pursuant to a notification issued under sub-section (3) of section 43A,]

[(ra) an order under section 43B,]

C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022

(s) an order under section 64,

[(t) an order under Chapter V-A, [(ta) an order passed under 18[clause (b) or clause (nb)] of section 70,]

(u) an order made under section 84A, 84B or 84C, 19[(ua) an order under section 84CC,]

(v) an order under section 85A,

(w) an order under section 88C.]

(2) Save as otherwise provided in this Act, the provisions of Chapter XIII of the Bombay Land Revenue Code, 1879 (Bom. V of 1879), shall apply to appeals to the Collector under this Act, as if the Collector were the immediate superior of the Mamlatdar or the Tribunal. The Collector in appeal shall have power to award costs."

"76A - Where no appeal has been filed within the period provided for it. the Collector may, suomotu or on a reference made in this behalf by the State Government, at any time,- (a) call for the record of any inquiry or the proceeding of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and (b) pass such order thereon as he deems fit:

C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022

Provided that 1 [no such record shall be called for after the expiry of one year from the date of such order and] no order of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard.]"

4.1 Learned advocate Mr. Thakkar, submits that

at the time when the powers under Section 76A of the

were exercised by the Collector, the appeal preferred

by the petitioners became redundant since order dated

14.7.2020 passed by the Deputy Collector in exercise

of powers under Section 76A is passed without hearing

the petitioners and that order is required to be

quashed and set aside and appeal preferred by the

petitioner under Section 74 of the Tenancy Act is

required to be heard on merit. In view of the

aforesaid submissions, learned advocate Mr. Thakkar

prayed for quashing and setting aside the order dated

14.7.2020 passed by the Deputy Collector, Panchmahal.

5 Mr. Krutik Parikh, learned AGP, upon

instructions as well as by pointing out to the reply

filed by the Deputy Collector, Panchmahal submits

that it is true that while exercising revisional

C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022

powers under Section 76A of the Tenancy Act, the

petitioners were not heard. However, he also drew

attention of this Court to the affidavit in reply

filed by the respondent No.3, wherein, in paras 7 to

10, the following averments are made:

"7. It is stated that the aforementioned circular dated 28.8.2017 came to be amended vide circular dated 15.9.2017 issued by the office of Collector, Panchmahals-Godhra, whereby certain clarifications were issued for smooth implementation of the instructions issued vide the earlier circular. However, the instruction that proceedings by way of an Appeal or Revision against any order of Mamlatdar & A.L.T would lie before the offence of Collector, Panchmahals- Godhra, remain unchanged. A copy of the circular dated 15.9.2017 is annexed herewith and marked as "Annexure-R/2".

8 It is stated that the Petitioners had preferred an application for Revision on 20.4.2018, before the office of Collector, Panchmahals-Godhra, against the order dated 3.1.2018 passed by Respondent No.1 authority. In pursuance to the same, the office of Collector, Panchmahals-Godhra issued show cause notice dated 21.7.2018, intimating the hearing to be kept on 2.8.2018. A copy of the show cause

C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022

notice dated 21.7.2018 issued by the office of Collector, Pnchmahals-Godhra, is already annexed as "Annexure-G" with the Petition.

9 It is stated that the office of Collector, Panchmahals-Godhra, issued a circular dated 25.2.2020, whereby the powers to adjudicate Appeal / Revision under Section 74-A & 76-A of the Act were rel-delegated to the Additional Collectors & Deputy Collectors, within their concerned Division. A copy of the circular dated 25.2.2020 is annexed herewith and marked as "Annexure-R/3".

10 It is stated that in pursuance to the circular dated 25.2.2020, the proceedings and case papers against the orders passed by Respondent NO.1 authority were returned to the office of answering Respondent by the office of Collector, Panchmahals-Godhra, vide its communication dated 1.7.2020, for its adjudication. A copy of the communication dated 1.7.2020 issued by the office of Collector, Panchmahals-Godhra to the office of answering Respondent is annexed herewith and marked as "Annexure-R/4".

5.1 By pointing out to the aforesaid averments,

learned AGP submits that in any case, the appeal

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filed by the petitioners under Section 74 of the

Tenancy Act will be heard on merit, and therefore,

appropriate order be passed.

6 Having heard learned advocates for the

parties and considering the provisions of the Tenancy

Act, more particularly, considering the language of

Section 76A of the Tenancy Act wherein it is

categorically provided that where no appeal has been

filed within the period provided for it, the

Collector may, suomotu or on a reference made in this

behalf by the State Government, at any time,- (a)

call for the record of any inquiry or the proceeding

of any Mamlatdar or Tribunal for the purpose of

satisfying himself as to the legality or propriety of

any order passed by, and as to the regularity of the

proceedings of such Mamlatdar or Tribunal, as the

case may be, and (b) pass such order thereon as he

deems fit. This would indicate that the revisional

powers under Section 76A can be exercised by the

Deputy Collector within a period of one year from the

date on which the order passed by the Mamlatdar &

ALT. However, there is a rider that such powers can

C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022

be exercised only when there is no appeal filed

challenging the order passed by the Mamlatdar & ALT.

Here in the instant case, the order dated 3.1.2018

passed by the Mamlatdar & ALT was carried in appeal

under Section 74 of the Act by the petitioner on

19.4.2018. That was well within the period of one

year and during the pendency of the appeal preferred

by the petitioners under Section 74 of the Tenancy

Act, the Deputy Collector, Panchmahal has exercised

revisional powers, which is not in consonance with

the provisions of Section 76A of the Tenancy Act.

Further, as it transpires from the record as well as

the submissions made by learned AGP that the impugned

order dated 14.7.2020 was passed by the Deputy

Collector, Panchmahal without hearing the petitioner,

and therefore, it also suffered from the principles

of natural justice.

6.1 Now, in view of the fact that the order

dated 3.1.2018 is already challenged by the

petitioners by filing appeal under Section 74 of the

Tenancy Act, interest of justice would be served if

the order dated 14.7.2020 is quashed and set aside

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for the reason that when the order was passed, appeal

preferred by the petitioner was already pending and

on the ground of principles of natural justice as

well as by taking into consideration the provisions

of Section 76A, which is applicable only in cases

wherein no appeal is preferred within the period

provided for it, as the language itself clearly

suggests.

6.2 What is important is, to examine the order

passed by the Mamlatdar & ALT, and not under which

proceedings the same is being examined. When the

petitioners have challenged the order dated 3.1.2018

before the Collector, Panchmahal, the powers are

delegated to the Deputy Collector, Panchmahal for

appeal as well as revision, the Deputy Collector was

in a position to examine the order dated 3.1.2018

after hearing the petitioners in the appeal preferred

by the petitioner under Section 74 of the Act.

Further, when the appeal under Section 74 was already

preferred and was pending before the Deputy

Collector, there was no need to exercise powers under

Section 76A. Though the appeal under Section 74 of

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the petitioner was pending, the Deputy Collector,

without hearing the petitioners, exercised the powers

under Section 76A in violation of principles of

natural justice, and therefore, that order is

required to be quashed and set aside. However, such

proceedings cannot be once again initiated by the

Deputy Collector by stating that, that order is

quashed only for violation of principles of natural

justice and what would remain now is only appeal

preferred by the petitioner under Section 74 of the

Tenancy Act, and the Collector or whosoever the

authority, which is prescribed as per the Act and as

per the subsequent circulars, will have an

opportunity to examine the order dated 3.1.2018

passed by the Mamlatdar & ALT.

7 In view of the above following order is

passed.

[a] Order dated 14.7.2020 passed by the Deputy

Collector, Panchmahal at Godhra in

Ganot/76(A)/Avlokan/Case No.06 of 2020 is here

by quashed and set aside.

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[b] The authority is directed to hear and

decide the pending appeal preferred by the

petitioners under Section 74 of the Tenancy Act

permitting the petitioners to place any

additional material on record, including the

written submissions and judgments.

[c] After giving sufficient opportunity to the

petitioners, the authority is directed to decide

the appeal preferred by the petitioners on

merits.

[d] It is clarified that rights and contentions

of the parties are kept open.

[e] While deciding the appeal preferred by the

petitioners, the authority shall not be

influenced by the order dated 14.7.2020 which is

quashed and set aside by this Court and it is

directed to hear and decide the aforesaid appeal

afresh on its own merits.

C/SCA/14495/2021 JUDGMENT DATED: 10/03/2022

8 With the aforesaid observations and

directions, this appeal is partly allowed. Rule is

made absolute to the aforesaid extent only. Notice

discharged. However, there shall be no order as to

costs.

Sd/-

(NIRZAR S. DESAI,J) P. SUBRAHMANYAM