Date : 01/09/2017 ORAL JUDGMENT
1. RULE. Learned AGP waives service of rule for Respondent Nos. 1 to 3.
2. With the consent of both the sides, this matter is taken-up for final hearing at the admission stage.
3. This is a petition under Articles 226 and 227 of the Constitution of India, challenging the action of the Special Secretary Revenue Department (for short, 'SSRD') in Revision Application No. MVV/HKP/ANAND/35/2016, whereby, it upheld the Revenue Entry No.11824, Dated: 04.12.2013, vide its order dated 09.09.2016 in the following factual background.
4. The dispute concerns the land bearing Survey No. 102/3 admeasuring 00-27-35 H-R-A, Survey No. 118 paiki 2 admeasuring 00-22-26 H-R- A, Survey No. 706 admeasuring 01-01-17 H-R-A, Survey No. 994 admeasuring 00-33-39 H-R-A, Survey No. 1007/1 Paiki 2 admeasuring 00-22-26 and Survey No. 997 admeasuring 00-41-48, situated at Village: Kasor, Taluka: Sojitra, District: Anand (hereinafter, 'the said lands or the lands in question).
5. The petitioner has grievance against Respondent No.4, who is real elder brother of the present petitioner. The disputed lands are the ancestral property. Since, the parents of the present petitioner has passed away, names of legal heirs, i.e. the petitioner and Respondent No.4, came to be entered into the revenue record.
6. The petitioner had given a general power-of-attorney in favour of Respondent No.4 on 15.11.2010 for the purpose of administrative work and he had given no right of sale or transfer. It is his say that the affidavit, which was executed on 17.08.2011 on the stamp paper of Rs.20/- before the Mamlatdar also has been misused by respondent No.4 and the entire property got transferred in the name of his elder brother. This entry No.11824 is, therefore, challenged on the ground that there was no notice under Section 135D of the Gujarat Land Revenue Code (for short, 'the Code').
7. The petitioner approached the Dy. Collector, Petlad, by way of appeal being R.T.S. Appeal No. 275 of 2014, who rejected the same vide order dated 04.02.2015 and confirmed the order of the Mamlatdar dated 01.03.2014, certifying the Entry No.11824. This was challenged before the Collector, Anand, by way of Revision Application No. R.T.S./R.A./ No.153/2015, who rejected the revision and confirmed the order of the Dy. Collector, Petlad, vide order dated 16.12.2015. A further challenge was made to the same before the SSRD, who, in turn, confirmed the order of the Collector. Hence, this petition seeking following reliefs:
8. ... a) Your Lordships to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction.
b) Your Lordship may be pleased to quash and set aside the order dated 09/09/2016 by the Special Secretary Revenue Department, Gujarat State (Annexure A) and cancel the revenue entry No.11183, dated 23/08/2011 in the revenue record of the disputed land in the interest of justice;
c) Pending petition Your Lordship may be pleased to grant the stay against the order dated 09/09/2016 passed in the Revision Application No. MVV/HKP/ANAND/36/2016 by the Special Secretary Revenue Department Gujarat State (Annexure-A) in the interest of justice.
d) ...
8. An affidavit is also filed by the petitioner in support of his case.
9. This Court has heard the learned counsels on both the sides. On close examination of the material on record, it emerges that all the authorities have noticed that before the Mamlatdar, on a stamp of Rs.20/-, an affidavit was filed by the present petitioner stating therein that he has relinquished his rights in favour of his elder brother. So far no criminal complaint is lodged before any authority, although, fraud has been alleged. Further, a civil suit, lodged before the Court of the learned Sr. Civil Judge, Anand, is now posted for framing of the issues. No injunction, however, in the said matter has been granted in favour of the present petitioner.
10. Learned Advocate, Mr. Patel, when pertinently was questioned, whether, any attempt was done to get the injunction from the Court concerned, his reply was in negation. In such a view of the matter, when all the authorities have chosen not to disturb the entry, which is certified by the Mamlatdar, on the strength of the eloquent material present on record of the revenue authorities, no interference is desirable. Resultantly, this petition fails and is DISMISSED. This, in no manner, shall take away the rights of the petitioner in pursuing the remedy available to him under the law. It is needless to say that the entry will be subject to the final out come of the Civil Suit, which is pending before the competent Civil Court. Rule is discharged. (MS SONIA GOKANI, J.) UMESH