C/SCA/11536/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11536 of 2019
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KARIMBHAI SHARIFBHAI AAMBLIYASNA
Versus
STATE OF GUJARAT
============================================= Appearance:
MR RASESH H PARIKH(3862) for the Petitioner(s) No. 1 MR.HEMANG H PARIKH(2628) for the Petitioner(s) No. 1 for the Respondent(s) No. 2
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER/PP(99) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 05/07/2019
ORAL ORDER
Leave to amend the prayer clause. [1.0] RULE. Ms. Divyangana Jhala, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent No.1. With the consent of learned advocates appearing for respective parties, present petition is taken up for final hearing today.
[2.0] By way of present petition under Articles 226 and 227 of the Constitution of India, following prayers have been made.
"(A) YOUR LORDSHIPS be pleased to issue a writ of mandatory or any other appropriate writ, order or direction in the nature of certiorari, quashing and setting aside the impugned order dated 15.07.2017 passed by Ld. Special Secretary, Revenue Department, in Revision Application No.MVV/HKP/Patan/115/2013 (Annexure A), and be pleased to direct Respondent No.2 to pass appropriate direction to certify the Mutation Entry
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No.3266 in the interest of justice;
(B) Pending admission, hearing and till final disposal of the petition, YOUR LORDSHIPS may be pleased to stay operation, implementation and execution of the impugned order dated 15.07.2017 passed by Ld. Special Secretary, Revenue Department, in Revision Application No.MVV/HKP/Patan/115/2013 (Annexure A), in the interest of justice;"
[3.0] The case put forth by the petitioner is as follows:
[3.1] That the petitioner purchased the land in question in the year 2007 by way of a registered sale deed and entries were mutated in the revenue record.
[3.2] In the year 2008, entries were examined by the District Collector, Patan in suo moto proceedings and it was found that the entries were required to be quashed and set aside on five grounds viz. (1) that the land in question is a piece of fragmented land; (2) petitioner - purchaser is not an agriculturist; (3) there is an encumbrance of the bank on the land in question; (4) that the original owners were not served with notice under Section 135D of the Gujarat Land Revenue Code, 1972 and (5) that appropriate stamp duty was not affixed on the power of attorney, which was executed on behalf of the original seller.
[3.3] The said decision of the District Collector, Patan was challenged by the petitioner by way of filing Revision Application No.26-29/2009 before the Special Secretary, Revenue Department. The said revision application came to be partly allowed by the
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Special Secretary vide order dated 18.03.2011. The Special Secretary believed the case of the petitioner that the land is not a fragmented land and there is no encumbrance of bank on the land in question, however the matter was remanded to the District Collector, Patan to consider whether the petitioner is an agriculturist or not, whether or not any notice under Section 135D of the Gujarat Land Revenue Code, 1972 has been served and whether appropriate stamp duty is affixed on the power of attorney of the seller.
[3.4] The District Collector, Patan by his order dated 24.10.2011 passed in RTS / Suo Motu / Revi./190/2011, however did not consider the points on which the case was remanded to it. Therefore, the petitioner filed an application dated 29.06.2013 to the District Collector, Patan and brought to his notice about the earlier order passed by the Special Secretary, which was not accepted. Therefore, the petitioner preferred Revision Application No.115/2013 before the Special Secretary and the Special Secretary by the impugned order dated 15.07.2017 has dismissed the said revision application.
Hence, the present petition.
[4.0] Mr. Parikh, learned advocate appearing for the petitioner would submit that the District Collector, Patan while examining the case which was remanded has committed error by not dealing with the issues for which the matter was remanded to it in the year 2011. He would further submit that similar is the reasoning by the Special Secretary and therefore, the matter requires consideration. [5.0] On the other hand, learned Government Pleader Ms. Manisha Lavkumar Shah has opposed the present petition.
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[6.0] I have heard learned advocates appearing for respective parties. Perused the orders passed by the District Collector, Patan and the Special Secretary.
It is an undisputed fact that in the year 2011, the petitioner has filed revision application challenging the cancellation of entries, which was partly allowed and two issues were decided in favour of the petitioner and for three issues, the matter was remanded to the District Collector, Patan. Instead of deciding those three issues for which the matter was remanded to the District Collector, Patan, the District Collector, Patan has again examined the issues which were already decided by the Special Secretary in favour of the petitioner and has passed an order which is contrary to the order passed by the Revisional Authority. Unfortunately, the Revisional Authority in the impugned order has also dealt with on the same line. Hence, I am of the opinion that the petition requires consideration.
[7.0] Present petition is allowed. Impugned order dated 15.07.2017 passed by the Special Secretary in Revision Application No.115/2013 and the order dated 29.06.2013 passed by the District Collector, Patan in RTS/Remand Case No.190/2011 are hereby quashed and set aside. The District Collector, Patan is hereby directed to decide the remanded case strictly as per the directions issued in order dated 18.03.2011 passed by the Special Secretary in Revision Application No.26-29/2009 as early as possible preferably within a period of six months, in accordance with law and after giving opportunity of hearing to all concerned. Rule is made absolute accordingly. Direct service is permitted.
(A.J.DESAI, J)
Ajay
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