1. By way of this petition, the petitioner has challenged the impugned order dated 24.10.2011 passed by the Deputy Collector, Rajkot (Rural), whereby his appeal against the revenue entries in question has been rejected. In addition thereto, the Deputy Collector has directed that the order of non-agricultural (N.A.) use permission granted in favour of the petitioner on 10.02.1982, be taken in revision by the District Development Officer.
2. At the outset, Mr.Pranav S. Dave, learned Assistant Government Pleader, appearing on supply of an advance copy of the petition, has raised a preliminary objection that the petition is directed against an order passed by the Deputy Collector, which can be challenged by the petitioner before the Collector, and as there is an alternative remedy available to the petitioner, therefore, the petition be not entertained.
3. Mr.S.P.Majmudar, learned advocate for the petitioner has submitted that where an order has been passed without jurisdiction, the Court can entertain the petition, in spite of availability of an alternative remedy, as held by the Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors. reported in 1998 (8) SCC 1. He has also relied on a judgment of this Court rendered on 17.11.2011 in Special Civil Application No. 7565/2011 and connected matters. It is submitted by the learned advocate for the petitioner that the order granting N.A. permission in favour of the petitioner has been passed in exercise of delegated powers, as it is the Collector who is vested with power under Section-65 of the Gujarat Land Revenue Code, to grant non-agricultural use permission. The Taluka Development Officer has exercised the powers of the Collector, as his delegate, therefore, it can be said that the power has been exercised by the Collector only. It is contended that the Deputy Collector, being an officer subordinate to the Collector, cannot comment upon and hold the order granting N.A. permission to be erroneous, as has been done by him while passing the impugned order. That, as the impugned order is without jurisdiction, the Court may entertain the petition. The learned advocate for the petitioner has further relied upon a judgment of this Court in Prayas Woollens (Pvt.) Ltd. Vs. State of Gujarat & Ors. reported in 1996 (2) GLH 534, wherein this Court has held that the Assistant Collector does not have the power of suo motu revision under Section-211, and is not competent to cancel N.A. permission granted by the Collector, or his delegate. It is submitted that though the N.A. permission granted by the Taluka Development Officer in favour of the petitioner has not been cancelled, however, the direction issued by the Deputy Collector in the impugned order to the District Development Officer to revise the said permission in view of the observations made in the order, is also without jurisdiction.
Issue Notice returnable on 02.05.2012.
By way of ad-interim relief, it is directed that the implementation, execution and operation of the impugned order dated 24.10.2011 passed by the Deputy Collector, Rajkot (Rural), shall remain stayed, till then.
In addition to the normal mode of service, Direct Service is also permitted.
(Smt.
Abhilasha Kumari, J.) ~gaurav~ Top