This petition, under Articles 226 and 227 of the Constitution of India, has been filed with a prayer to issue a Writ of Certiorari or any other Writ, order or direction, to quash and set aside the Notice dated 18.11.2011, issued by the Deputy Collector, Viramgam Prant, calling upon the petitioner to remain present on 09.12.2011, for the hearing of an application for condonation of delay in the Appeal under Section 108(5) of the Gujarat Land Revenue Rules, 1972 ("the Rules" for short), filed by respondent No.1.
The brief facts of the case are that the petitioner is a cooperative society registered under the Gujarat Cooperative Societies Act,1961. It is averred in the petition that the petitioner is the owner and occupier of land bearing old Survey Nos.375/1, 372/2 and 375/3, Block No.533 admeasuring 14164 square metres and land bearing old Survey Nos.375/4 and 375/5, Block No.534, admeasuring 6576 square metres (hereinafter referred to as the land in question). That, the said lands were originally owned by Shri Bhikhaji Ranchhodji. Said Bhikhaji Ranchhodji expired on 21.05.1986. A Mutation Entry No.3514 was mutated in thee revenue record in favour of the heirs of deceased Bhikhaji Ranchhodji. An application was preferred by respondent No.4, the Power of Attorney holder of the heirs of Bhikhaji Ranchhodji under Section 197 of the Bombay Land Revenue Code, 1879 ("the Code" for short), before the Mamlatdar, Dascroi. After undertaking an ordinary enquiry as envisaged under Section 197 of the Code, the Mamlatdar passed an order on 06.01.1992, whereby the words "new tenure" were removed from the land bearing Survey Nos.375/1, 375/4, 375/2 and 375/5. An entry to this effect came to be mutated in the revenue record vide Entry No.4070. Thereafter, by orders passed by the Taluka Development Officer, dated 12.06.1996 and 19.08.1997, permission to convert the land into non-agricultural land was granted. Thereafter, the land in question has been purchased by the petitioner from the heirs of Shri Bhikhaji Ranchhodji, by a registered Sale Deed dated 25.10.2001 and Entry No.6757 has been mutated in the revenue record, to this effect. It is the case of the petitioner that after 19 years, 7 months and 6 days from the date of passing of the order by Mamlatdar, respondent No.1 who, according to the petitioner, has no locus-standi, has filed an appeal, being RTS Appeal No.516 of 2011, under Rule 108(5) of the Rules, read with Section 203 of the Code, before the Deputy Collector, Dascroi.
It appears from the record that respondent No.1 has also filed an application for condonation of delay. By impugned Notice dated 18.11.2011, the Deputy Collector has called upon the petitioner to appear in connection with the hearing on the application for condonation of delay on 09.12.2011. The Court is informed by the learned advocate for the petitioner, upon instructions, that the hearing has now been adjourned to 10.02.2012.
Mr.Tattvam K.Patel, learned advocate for the petitioner, has submitted that the impugned Notice dated 18.11.2011, issued by the Deputy Collector is without jurisdiction as Rule 108(5) of the Rules deals with a different set of proceedings regarding mutation entries. It is submitted that the case of the petitioner has never been entered into the Register for disputed proceedings as per Rule 108(1). It is submitted that it is only those disputes that are entered into the Register of Dispute Cases that are the subject-matter of an appeal under Rule 108(5), therefore, the Deputy Collector has no jurisdiction to issue the impugned Notice to the petitioner.
It is further submitted that the order passed by the Mamlatdar on 06.01.1992, was in proceedings under Section 197 of the Code, after holding an ordinary inquiry. The subject-matter of this order is not a dispute regarding a mutation entry, therefore, on this ground as well, the Notice issued by the Deputy Collector is without jurisdiction.
It is next submitted that the prayers made by respondent No.1 in the memorandum of appeal filed by it reveals that the matter does not pertain to mutation entries. If the impugned Notice is permitted to stand, it would cause unnecessary harassment and hardship to the petitioner and result into lengthy proceedings, without there being any fault on the part of the petitioner.
It is further contended that there is no legal entity by the nomenclature adopted by respondent No.1, therefore, no Notice could have been issued in an appeal filed at the behest of respondent No.1 without proper verification by the Deputy Collector.
Lastly, it is submitted that the impugned Notice is patently illegal and contrary to the settled propositions of law.
In support of the above submissions, reliance has been placed by the learned advocate for the petitioner on the following judgments:
(a) Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies, District I, Calcutta and another - AIR 1961 SC 372
(b) Motiben Somaji and Ors. v. State of Gujarat and Anr. - 1996(2) GLH 22
(c) Chandulal H.Ghodasara v. State of Gujarat & Ors. - 1997(1) GLH 757
(d) Union of India And Another v. M/s.Brij Fertilizers Pvt. Ltd. And Others - (1993)3 SCC 564, and
(e) M/s.Jailaxmi Estate and another v. State of Gujarat and others - AIR 1994 GUJARAT 38 Mr.Pranav S.Dave, learned Assistant Government Pleader, appearing upon supply of an advance copy of the petition on behalf of respondents Nos.2 and 3, has submitted that as such, by issuance of the impugned notice to appear before the Deputy Collector in connection with an application for condonation of delay filed by respondent No.1, no proceedings have been initiated and the petitioner can voice the grievances ventilated by it in the present petition, before the Deputy Collector.
In support of the above submission, reliance has been placed upon a judgment rendered by a Division Bench of this Court in Marck Parenterals India Ltd. & Anr. v. Union of India & Ors. - 2009(3) GLH 119.
Having heard the learned counsel for the respective parties and having considered the submissions made at the Bar and the material on record, it would be relevant to note that the impugned Notice dated 18.11.2011, is a Notice issued to the petitioner to appear in-person or through an authorized representative or learned advocate, in connection with an application for condonation of delay filed by respondent No.1, along with its appeal. As such, no proceedings have been initiated by the Deputy Collector, so far. The hearing of the matter has now been scheduled for 10.02.2012.
As the Notice has not culminated into any quasi-judicial proceedings, and it is only an intimation regarding the hearing of an application for condonation of delay, it cannot be concluded, at this stage, that the said Notice is without jurisdiction. At the same time, the contentions raised by the learned advocate for the petitioner would have to be heard and decided by the Deputy Collector. It would, therefore, be appropriate if the petitioner is permitted to raise all the contentions raised before this Court, including any other available contentions, before the Deputy Collector, who can consider the same, before adjudicating on the appeal on merits.
The view of this Court is fortified by the view taken by a Division Bench of this Court in Marck Parenterals India Ltd. & Anr. v. Union of India & Ors. (supra).
This Court, in Heena Tours and Travels v. Hiten Shah and Others
- Special Civil Application No.17461 of 2011 decided on 22.12.2011, has also taken the same view.
Mr.Tattvam K.Patel, learned advocate for the petitioner, submits that the petitioner is ready to appear before the Deputy Collector. However, the Deputy Collector may be directed to take into consideration the contentions raised by the petitioner as preliminary objections and decide the same before the appeal is heard on merits.
In view of the above statement made by the learned advocate for the petitioner, the petition is not being decided on merits and the following order is passed:
The petitioner is permitted to take all contentions, including that of jurisdiction, before the Deputy Collector, on the next date of hearing. The Deputy Collector shall consider and decide the contentions raised by the petitioner as preliminary objections by passing a reasoned order and shall not proceed further with the hearing and decision of the appeal without rendering a decision upon the preliminary objections raised by the petitioner.
The petition is disposed of, in the above terms.
Direct Service of this order, today, for respondent No.3, is permitted.
(Smt.
Abhilasha Kumari, J.) (sunil) Top