Karshanbhai Dungarbhai Rathod v. State Of Gujarat And Others

A.S. Supehia, J.:— Despite the service of notice to the private respondents, they have chosen not to enter any appearance either through an advocate or as party-in-person.

2. Rule. Learned AGP waives service of rule for the respondent no. 1-State.

3. In the writ petition being Special Civil Application No. 14599 of 2018, the petitioner has, inter alia, prayed for following relief:

“7(B) This Hon'ble Court may be pleased to appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the directions issued by the Ld. Secretary, Revenue Department, for initiation of proceedings to determine as to whether the petitioner is an agriculturist or not? And to initiate proceedings under the Gujarat Tenancy and Agricultural Lands Act, 1948, by way order, Annexure-A, dated 06.02.2018 passed in Revision Application No. MVV/HKP/AMD/151/2017.”

4. In the writ petition being Special Civil Application No. 15554 of 2019, the petitioner has, inter alia, prayed for following relief:

“8(B) This Hon'ble Court may be pleased to appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned notice, Annexure-A, dated 25.06.2019, issued by respondent no. 2 herein in exercise of the powers conferred under the provisions of Sec. 84-C read with Sec. 63 of the Bombay Tenancy and Agricultural Act, 1948.”

5. At the outset, learned advocate Mr. K.P. Champaneri appearing for the petitioner has submitted that though the revision application filed by the private respondents was not entertained on the ground of delay of 30 years, in the initial order directions are issued to the Collector for carrying out necessary exercise against the present petitioner (original respondent no. 3) to investigate whether the petitioner is an agriculturist.

6. As the facts of both the petitions are similar, hence, the facts of Special Civil Application No. 14599 of 2018 leading to filing of the present writ petitions deserve to be set out as under:

6.1. The land bearing block no. 830 situated at village Sitapur of Mandal Taluka, was running in the name of Ganeshbhai Savabhai and his wife Boniben Ganeshbhai. Upon their death Entry Nos. 4337 and 4338 dated 24.09.1983 came to be mutated in the revenue record, whereby the names of the present petitioner and the respondent nos. 5 to 8, came to be entered in the revenue records. Entry No. 4338 came to be mutated after service of notice under Section 135D of the Gujarat Land Revenue Code, 1879 (for short “the Code”) after recording the statement of respondent nos. 5 to 8 in writing.

6.2. Entry No. 4338 was certified on 27.10.1983. The said entry remained posted for a period of 31 years and thereafter, the respondent nos. 5 to 8 challenged the said entry by way of an appeal filed before Deputy Collector, Viramgam Prant, under the provisions of Rule 108(5) of the Gujarat Land Revenue Rules, 1972 (for short “the Rules”). Thereafter, accordingly the notice was issued to the petitioner and after hearing the petitioner, the said appeal was rejected on merits as well as on the ground of delay, by way of an order dated 11.12.2015 passed by the Deputy Collector, Viramgam Prant in the proceedings of RTS/Appeal/Case No : 10/2014. While passing the said order, the authority held that the notice under Section 135D of the Code was served to the respondent no. 5 to 8, and their statements were recorded by the talati-cum-mantri at the relevant point of time and panchnama was also drawn accordingly. Further, a delay of 30 years was found to be not sufficiently explained and accordingly the appeal was rejected, with a liberty to approach civil court for determination of the property rights.

6.3. The said order was challenged by the respondent nos. 5 to 8 before the Collector, Ahmedabad by way of a revision application being LB/Revision Application No : 6/2016. The said revision application came to be rejected by way of an order dated 31.03.2017.

6.4. The respondent nos. 5 to 8 feeling aggrieved and dissatisfied by the same, challenged the same, by way of a revision application filed before the Special Secretary, Revenue Department, being Revision Application No. MVV/HKP/AMD/151/2017, the said revision application came to be rejected by the order dated 06.02.2018.

7. Learned advocate Mr. Champaneri for the petitioner has submitted that while rejecting the revision applicat ion, the authorities below are directed to initiate the proceedings against the petitioner under the provisions of the Gujarat Tenancy and Agricultural Lands Act, 1948 (for short “the Act”) and hence, the impugned order suffers from total non application of mind and deserves to be set aside. He has submitted that the power under Section 211 of the Code and under Rule 108(6) of the Rules does not empower the authority to decide such issue after a delay of 35 years. Thus, he has submitted that the impugned order may be set aside.

8. Since the private respondents have chosen not to appear before this Court, this Court has heard the learned AGP Mr. Dhawan Jayswal.

9. Learned AGP Mr. Dhawan Jayswal has submitted that the private respondents after a period of 35 years had approached the concerned authorities to enter their names in Entry Nos. 4337 and 4338. He has submitted that Special Secretary, Revenue Department (SSRD) has rejected the case of the private respondents since they had approached after a period of 35 years, but the status of the present petitioner i.e. original respondent no. 3 was found to be unreliable, as he was adopted son, the SSRD has directed the Collector to investigate in this regard.

10. I have heard the learned advocates appearing for the respective parties.

11. It is established facts are that the private respondents after failing before the authorities below had filed Revision Application No. MVV/HKP/AMD/151/2017 before the SSRD and by the order dated 16.02.2018, while rejecting the case of the private respondents, has directed the concerned collector to investigate the status of the present petitioner, who was arrayed as an opponent no. 3 in the revision application. The SSRD has directed the Collector to do needful and inquire whether the present petitioner is an agriculturist by birth or not with respect to Entry No. 4338, which was certified vide order dated 27.10.1983. Thus, the exercise is undertaken after the period of 35 years. It is well settled law that such exercise invoking the provisions of Section 84C of the Tenancy Act is not permissible after unreasonable period. The said ratio has been laid down in the cases reported in (1) Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim ., (1997) 6 SCC 71, (2) Bharatbhai Naranbhai Vegda v. State of Gujarat, (2016) 2 GLR 1021 and (3) Hasmukhbhai Dahyalal Soni v. Collector-Gandhinagar, 2018 Law Suit (Guj) 1244.

12. Thus, in the considered opinion of this Court, such directions are misconceived since the original applicant i.e. the private respondents had approached the authorities after a period of 35 years, which is noticed by the SSRD and accordingly, their revision application has been rejected. There was no need to further investigate the status of the petitioner i.e. the opponent no. 3 by issuing such directions while rejecting the application of the petitioner. Thus, such directions issued by the SSRD after a period of 35 years is required to be quashed and set aside and are hereby quashed and set aside. As a consequence, the show cause notice dated 25.06.2019 issued by the Mamlatdar & ALT by invoking the provisions of Section 84C read with Section 63 of the Tenancy Act is also quashed.

13. The present writ petitions succeed. Rule is made absolute. Direct service is permitted.

14. Registry to place a copy of this judgment in the connected matter.