Gujarat High Court

Bhikhabhai Kumbhabhai Vaja vs Special Secretary Revenue on 15 March, 2023

Bench: Bhargav D. Karia

    C/SCA/13401/2021                            JUDGMENT DATED: 15/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 13401 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA                      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 ?

==========================================================
                       BHIKHABHAI KUMBHABHAI VAJA
                                  Versus
                       SPECIAL SECRETARY REVENUE
==========================================================
Appearance:
 for the Petitioner(s) No. 7.2
MS DHARA M SHAH(5546) for the Petitioner(s) No.
1,2,3,4,5,6,6.1,7,7.1,7.3,8
MR ASHUTOSH DAVE, AGP for the Respondent(s) No. 1,2,3,4
MR BHAVYARAJ GOHIL FOR MR AJ YAGNIK(1372) for the Respondent(s)
No. 5,6
==========================================================

    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                            Date : 15/03/2023
                            ORAL JUDGMENT

1. Heard learned advocate Ms.Dhara M. Shah for the petitioners, learned Assistant Government Pleader Mr.Ashutosh Dave for the respondent

C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023

nos.1 to 4 and learned advocate Mr.Bhavyaraj Gohil for learned advocate Mr.A.J.Yagnik for the respondent nos.5 and 6.

2. Rule. Learned AGP waives service of notice of

rule on behalf of respondent nos.1 to 4 and

learned advocate Mr.Bhavyaraj Gohil waives

service of notice of rule on behalf of

respondent nos.5 and 6.

3. By this petition under Article 227 of the

Constitution of India, the petitioner has

prayed for the following reliefs:

"(a) Your Lordships may be pleased to admit and allow this application;

(b) Your Lordships may be pleased to issue a writ of mandamus or in the nature of certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 14.06.2020 passed by SSRD, Ahmedabad in MVV/Gir/General/Vashi/.1201/2021 for land in question; and remand back the matter to the SSRD for the adjudication of the matter on merits;..............."

4. The brief facts of the case are that the

petitioners are the legal heirs of Kumbhabhai

C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023

Vaja. Late Kumbhabhai Vaja was declared a

protected tenant vide proceedings under

Section 84(c) of the Gujarat Tenancy and

Agricultural Lands Act, 1948 (for short

'Tenancy Act').

4.1. It is the case of the petitioners that the

land bearing Survey nos.764/2 and 771 of

Village Chhara, Taluka Kodinar, District Gir-

Somnath was running in the name of late

Kumbhabhai Vaja since the year 1953 in the

revenue record as per the mutation entry

no.436 dated 05.10.1953 and mutation entry

no.448 dated 09.11.1953. Mutation entry

no.436 was entered into revenue record on the

basis of the sale deed in favour of three

persons namely Kumbhabhai Vaja, Lakha Vasta

and Boda Karsan who jointly purchased the

land in question from one Shri Gayakwad

Agriculture Company for Rs.140/- on

26.05.1953. Name of late Kumbha Vaja was

C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023

entered into the revenue record vide entry

no.445 dated 09.11.1953 on the basis of his

holding the land as protected tenant which

was later on certified.

4.2. It appears that thereafter entry no.1085 was

mutated on 07.12.1968 by Mamlatdar and ALT on

the basis of the order passed in Ganot Case

No.229 of 1968 whereby the sale deed executed

on 26.05.1953 was regularized by levy of

penalty of Re.1/-.

4.3. The respondent nos.5 and 6 made an

application on 31.07.2015 to enter their

names in the revenue records in respect of

the land in question before the Mamlatdar who

by order dated 13.07.2016 rejected such

application on the ground of delay of about

49 years for preferring such application.

4.4. Being aggrieved respondent nos.5 and 6

preferred appeal before the Deputy Collector

C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023

being RRT/MISC. APPEAL CASE No.01/19. The

Deputy Collector by the order dated

02.07.2019 allowed the appeal taking into

consideration that the sale deed executed in

favour of the three persons i.e. Lakha Vasta,

Boda Karsan and Kumbha Khima in the year 1953

and respondent nos.5 and 6 were the legal

heirs of the Boda Karsan and Lakha Vasta.

4.5. The petitioners therefore being aggrieved by

the order of the Deputy Collector preferred

Appeal being No.Land/3/Appeal/1/2020 before

the Collector, Gir Somnath, who by order

dated 01.09.2020 rejected the appeal filed by

the petitioners confirming the order passed

by the Deputy Collector.

4.6. The petitioners therefore, being aggrieved

by the order dated 01.09.2020 passed by the

Collector, preferred Revision Application

under Section 211 of the Gujarat Land Revenue

C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023

Code, 1879 (for short 'the Code') before the

Special Secretary (Appeals) Revenue

Department (for short 'SSRD'). The SSRD

however, by letter dated 14.06.2020 returned

the papers of the Revision Application to the

petitioners on the ground that the dispute is

with regard to the right of Ganot and

therefore, as per rules of business, the SSRD

has no jurisdiction to hear the revision

application filed by the petitioners.

4.7.Being aggrieved, the petitioners have

approached this Court with the aforesaid

prayers.

5. Learned advocate Ms.Dhara M. Shah for the

petitioners submitted that the petitioners

have challenged the order passed by the

Deputy Collector directing the Mamlatdar to

enter the name of the respondent nos.5 and 6

in the revenue record before Collector under

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Section 203 of the Code and therefore, the

revision application under Section 211 of the

Code would be maintainable and the SSRD has

committed an error by returning the papers of

revision application to the petitioners.

Learned advocate Ms.Shah also referred to and

relied upon the Rules of the Business, 1990

of the SSRD to point out that the SSRD has

jurisdiction to hear the revision against the

appeal decided under Section 203 of the Code.

6. Learned AGP Mr.Ashutosh Dave for the

respondent authorities relied upon the

averments made in affidavit filed on behalf

of respondent nos.2- Collector and respondent

no.4-Mamlatdar and submitted that as per the

explanation received from the Collector vide

letter dated 02.04.2022 addressed to the AGP,

it is stated by the Collector that the order

dated 01.09.2020 in Case No. Land/ 3/ Appeal/

1/2020 was passed under Section 203 of the

C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023

Code.

6.1. Learned Assistant Government Pleader

Mr.Dave submitted that the Mamlatdar has also

stated that the proceedings are initiated

under the provisions of the Code and

therefore, the SSRD would have the

jurisdiction to hear the revision application

filed by the petitioners.

7. In view of the above facts emerging from the

record, the question would arise as to

whether the proceedings which were initiated

under the provisions of the Code before the

Mamlatdar and carried further before the

Deputy Collector and Collector can be said to

be not under the provisions of the Code only

because the issue pertains to the facts

relating to the protected tenant or not.

8. It is also pertinent to note that respondent

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nos.5 and 6 have challenged the mutation

entry no.436 dated 05.10.1953 before the

Mamlatdar which was also rejected on the

ground of delay by order dated 09.02.2017 and

the same has not been carried in appeal.

Respondent nos.5 and 6 have also filed

Regular Civil Suit No.88 of 2018 in the Court

of Additional Civil Judge, Kodinar with a

prayer to declare them as co-owner of the

land in question.

9. Section 211 of the Code reads as under:

"Power of State Government and of certain revenue officers to call for and examine records and proceedings of subordinate officers;

211. The [State] Government and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.

The following officer may in the same manner call for and examine the proceedings of any officer subordinate to them in any matter

C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023

in which neither a formal nor a summary inquiry has been held, namely, [* * *] a Mamlatdar, a Mahalkari, an Assistant Superintendent of Survey and an Assistant Settlement Officer.

If in any case, it shall appear to the State Government, or to such officer aforesaid, that any decision or order or proceedings so called for should be modified, annulled or reversed, it or he may pass such order thereon as it or he deems fit:

Provided that an Assistant or Deputy Collector shall not himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pass such order thereon as he may deem fit:"

10. On perusal of the above provision, it is

clear that the State Government and certain

Revenue officers have power to call for and

examine records and proceedings of

subordinate officers which includes any order

passed in any proceedings for the purpose of

satisfying as to the legality or propriety of

any decision or order passed and as to the

regularity of proceedings of such officers.

When the Deputy Collector and the Collector

have passed the orders under the provisions

C/SCA/13401/2021 JUDGMENT DATED: 15/03/2023