Patel Hitendrakumar Kanjibhai vs State Of Gujarat
2023 Latest Caselaw 5220 Guj

     C/SCA/11316/2021                              ORDER DATED: 06/07/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 11316 of 2021
                                 With
           CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023
           In R/SPECIAL CIVIL APPLICATION NO. 11316 of 2021
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                        PATEL HITENDRAKUMAR KANJIBHAI
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR K B VIRVADIYA(11272) for the Petitioner(s) No. 1,2,3,4,5
MR NISHIT P GANDHI(6946) for the Petitioner(s) No. 1,2,3,4,5
MR JAYNEEL PARIKH AGP for the Respondent(s) No. 1
MR HARNISH V DARJI(3705) for the Respondent(s) No. 6
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4,5
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 CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                               Date : 06/07/2023

                                ORAL ORDER

1. By way of draft amendment, the petitioners have challenged the order dated 29.03.2023 and the correction order dated 31.03.2023 passed by the Deputy Collector, Patan pursuant to the impugned order dated 01.02.2021 passed by the learned Special Secretary, Revenue Department in Revision Application No.MVV/HKP/PTN/49/2019. The said draft amendment is allowed and the amendment be carried out forthwith and the following prayer be added accordingly:-

"19AA. YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing quashing and setting aside the impugned order dated 29.03.2023 passed by Deputy Collector (At Annexure-JJ)."

       C/SCA/11316/2021                                  ORDER DATED: 06/07/2023




1.1             The present Special Civil Application is filed praying for
the following reliefs :-

"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing quashing and setting aside the impugned order dated 01.02.2021 passed by learned SSRD in Revision Application no.MVV/HKP/PTN/49 of 2019 so far as it quashes and sets aside the orders dated 07.09.2019 passed by the District Collector and order dated 25.02.2019 passed by the Deputy Collector (At Annexure-H).

(B) During the pendency and Final Disposal of the present petition YOUR LORDSHIPS may be pleased to stay further operation, execution and implementation of the order dated 01.02.2021 passed by learned SSRD in Revision Application no.MVV/HKP/PTN/49 of 2019 (At Annexure-L).

(C) Pass any such other and/or further orders that may be thought fit and proper, in the facts and circumstances of the present case."

2. The facts leading to filing of the present Special Civil Application are as follows :-

2.1 The dispute pertains to the land situated at Revenue Survey No.878 (New Survey No.2614), Village Ranuj, Taluka Patan, District Patan. The land in question is purported to be a government waste land and the same is allotted to the Village Panchayat, Ranuj for public purpose. That, accordingly, entry No.1091 was posted giving effect to the government resolution No.251/53 and the mutation entry No.1091/11 came to be mutated wherein the land was shown as iddgah kharabo. However, by order dated 13.07.1957, the said entry No.1091/11 came to be rejected and the land in question was shown as government waste land. On 30.12.2011, the

C/SCA/11316/2021 ORDER DATED: 06/07/2023

respondent No.6 moved an application before the Mamlatdar, requesting to correct the name of the occupant from Sarkari Padtar to Iddgah Kharabo in Village Form No.7/12 on the ground that there is a mistake at the time of computerization of the land record. By order dated 30.12.2011, the learned Mamlatdar allowed the application of the respondent No.6 and by entry No.7607 dated 11.01.2012, entered the name of Iddgah Kharabo. Aggrieved, the petitioners herein challenged the mutation entry No.7607 and the order dated 30.12.2011 before the Deputy Collector, Patan. The Deputy Collector, by order dated 25.02.2019, was pleased to allow the RTS/Case No.25/2019 and quashed and set aside the order dated 30.12.2011 as well as entry No.7607 dated 11.01.2012.

2.2 Aggrieved, the respondent No.6 preferred RTS/Revision/ 22/2019 before the learned District Collector. The learned Collector, vide order dated 07.09.2019, rejected the application of the respondent No.6. Aggrieved, the respondent No.6 preferred the Revision Application No.MVV/HKP/PTN/49 of 2019 before the learned Special Secretary, Revenue Department. By the impugned judgment and order dated 01.02.2021, the learned Special Secretary, Revenue Department rejected the revision application preferred by the private respondent. However, while rejecting the revision application, the learned Special Secretary, Revenue Department has also set aside the order dated 07.09.2019 passed by the Collector as well as the order dated 25.02.2019 passed by the Deputy Collector which were impugned before the learned Special Secretary, Revenue Department. Aggrieved, the petitioners have preferred the present Special Civil Application.

C/SCA/11316/2021 ORDER DATED: 06/07/2023

3. Learned advocate Mr. Nishit Gandhi for the petitioners submits that while rejecting the revision application, the learned Special Secretary, Revenue Department could not have granted the relief as prayed for in the revision application. He submits that the direction quashing the orders of the Deputy Collector and the Collector is bad in law and cannot be sustained. He further submits that pursuant to the direction No.3 in the impugned order dated 01.02.2021 of the learned Special Secretary, Revenue Department, the respondent No.6 herein preferred Revision Application No.Jamin/ Vasi/995 to 1003/2023 for correcting the record and inserting the name of Iddgah Kharabo in the revenue record and by order dated 29.03.2023, the Deputy Collector, Patan has allowed the said application of the respondent No.6 and again granted the relief of entering the name of respondent No.6. He submits that by further order dated 31.03.2023, the Deputy Collector has corrected the error as occurred in the order dated 29.03.2023. He submits that the same relief which came to be rejected by the Deputy Collector, Collector and the learned Special Secretary, Revenue Department in the earlier proceedings were granted by the order dated 29.03.2023 because the orders of the Deputy Collector and the Collector came to be quashed by the impugned order. He submits that therefore, the present Special Civil Application be allowed.

4. Per contra, learned advocate Mr. Harnish Darji for respondent No.6 submits that while rejecting the revision application of respondent No.6, the learned Special Secretary, Revenue Department, by direction No.3 in the operative portion of the impugned order, has permitted the respondent No.6 to establish its right over the said land before making a fresh application before the Mamlatdar and till then, there shall be no change in the revenue

C/SCA/11316/2021 ORDER DATED: 06/07/2023

record and the status quo was directed to be maintained with respect to the revenue record. He submits that in view of the liberty given by the learned Special Secretary, Revenue Department, the respondent No.6 had preferred an application before the learned Mamlatdar who forwarded the application to the Deputy Collector for decision and the learned Deputy Collector, after hearing the respondent No.6, has passed a fresh order directing that the name of respondent No.6 be entered in the revenue record. He submits that the order dated 29.03.2023 has been passed after considering the documents produced by the respondent No.6 before the learned Deputy Collector along with its application. He submits that even if the direction No.2 is deleted, the order dated 29.03.2023 which is also impugned by way of draft amendment cannot be set aside as the same is passed independently on the basis of the documents produced.

5. Learned Assistant Government Pleader Mr. Jayneel Parikh submits that the direction No.2 in the operative portion of the impugned order quashing the order of the Deputy Collector and the Collector cannot be sustained as the same has been passed after rejection of the revision application of respondent No.6. He further submits that the direction No.3 is also not sustainable so far as it directs that the status quo be maintained with respect to the revenue record. He submits that direction Nos.2 and 3 in the operative portion cannot be sustained.

6. Heard learned advocates for the respective parties and perused the documents on record.

C/SCA/11316/2021 ORDER DATED: 06/07/2023

7. It is an admitted position that the revision application of the respondent No.6 challenging the orders of the Deputy Collector and the Collector was rejected. In view thereof, once the revision application is rejected, then the orders impugned therein are upheld. Therefore, the direction No.2 in the operative portion of the impugned order of the learned Special Secretary, Revenue Department quashing and setting aside the order of the Collector dated 07.09.2019 in RTS/Revision/22/2019 as well as the order of the Deputy Collector dated 25.02.2019 in RTS/Case No.25/2019 cannot be sustained as it would amount to allowing the revision application after rejecting it on merits. Further, the respondent No.6 has not challenged the impugned order of rejection. Accordingly, the direction No.2 quashing and setting aside the orders of the Deputy Collector and the Collector is quashed and set aside. By direction No.3, the respondent No.6 has been given the liberty to make a fresh application after establishing its right over the land in question. Respondent No.6 had accordingly moved a fresh application before the Mamlatdar which came to be decided by the Deputy Collector by order dated 29.03.2023 and the revenue record is directed to be corrected accordingly. The Deputy Collector has proceeded to allow the application on the basis that the earlier orders of the Deputy Collector and the Collector have been quashed and set aside. Accordingly, the order dated 29.03.2023 and the correction order dated 31.03.2023 passed by the Deputy Collector, Patan are also quashed and set aside. The application of respondent No.6 being Jamin/Vasi/995 to 1003/2023 is directed to be heard afresh by the Deputy Collector on its own merits in accordance with law taking into consideration the earlier order of the Collector dated 07.09.2019 in RTS/Revision/22/2019 as well as the order of the Deputy Collector dated 25.02.2019 in RTS/Case No.25/2019 which

C/SCA/11316/2021 ORDER DATED: 06/07/2023

have been upheld by the learned Special Secretary, Revenue Department while rejecting the Revision Application of respondent No.6.

8. With the aforesaid observations, the present Special Civil Application is allowed and disposed of accordingly. No order as to costs.

9. In view of above, the Civil Application for direction does not survive and it stands disposed of.

Direct service is permitted.

(ANIRUDDHA P. MAYEE, J.)

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