Special Civil Application Nos. 20096, 20114 and 20115 of 2016. Case: Dilipbhai Galabji Thakore Vs State of Gujarat and Ors.. High Court of Gujarat (India)
| Case Number | Special Civil Application Nos. 20096, 20114 and 20115 of 2016 |
| Counsel | For Appellant: R.S. Sanjanwala, Senior Advocate and Parthiv B. Shah, Advocate and For Respondents: Amita Shah, Assistant Government Plader |
| Judges | Abhilasha Kumari, J. |
| Issue | Constitution of India - Articles 14, 21, 226, 227; Foreign Exchange Regulation Act, 1973 - Sections 50, 52, 54; Transfer of Property Act, 1882 - Sections 14, 9 |
| Judgement Date | March 21, 2017 |
| Court | High Court of Gujarat (India) |
Judgment:
Abhilasha Kumari, J.
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Rule. Ms.Amita Shah, learned Assistant Government Pleader, waives service of notice of Rule for respondents Nos. 1 to 4 and Ms. Venu Nanavati, learned advocate, waives service of notice of Rule for respondent No. 5 in each petition. Mr. Manav A. Mehta, learned advocate, waives service of notice of Rule for respondents Nos. 6 to 12 in Special Civil Application No. 20096/2015. On the facts, and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petitions are being heard and decided finally.
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These petitions have been preferred under Articles 226 and 227 of the Constitution of India, praying for the issuance of an appropriate Writ or direction, partially quashing and setting aside the impugned orders dated 06.10.2016, passed by respondent No. 1 Special Secretary (Appeals), Revenue Department ("SSRD" for short), only to the extent that they direct the Deputy Collector (East), Ahmedabad, respondent No. 3 herein, to hear the revision applications and decide the same on merits, after following the principles of natural justice.
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The petitioners have further prayed for the issuance of a Writ of Prohibition restraining the Deputy Collector from adjudicating upon RTS Appeals pending before him, as mentioned in each of the petitions.
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As identical issues of fact and law are involved in the petitions, the parties are common and the same orders have been challenged and prayers made, the petitions have been clubbed together. Common arguments have been advanced by learned counsel for the respective parties and the petitions are being finally decided by this judgment.
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For the sake of convenience, reference will be made to the facts as described in Special Civil Application No. 20096/2016. The rather complicated facts are being narrated in order to give the background, though they may not be immediately relevant to the legal issues arising in the petitions.
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It is the case of the petitioner that he and respondents Nos. 7 to 12 are the legal heirs of Galabji Ataji Thakore. Respondent No. 6 is Udaji Ataji Thakore. Galabji Thakore and Udaji Thakore are the legal heirs of Rukhiben, who was the daughter of Chakuji Thakore and was married to Ataji Thakore. Chakuji Thakore had two legal heirs, namely, Gabhaji Chakuji and Rukhiben Chakuji. On the demise of Gabhaji Chakuji, Shakriben, his widow, was the sole survivor of the pedigree of Gabhaji Chakuji as they had no children. A copy of the pedigree has been annexed as Annexure-C to the petition.
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Upon the demise of Chakuji Rajaji, the name of Gabhaji Chakuji and Rukhiben Chakuji came to be mutated in the revenue record in respect of Block No. 66 vide Mutation Entry No. 1534 dated 26.03.1993. Thereafter, upon the demise of Gabhaji Chakuji Thakore, respondent No. 5 (the sole contesting respondent), showing himself to be the legal heir of Gabhaji, got his name mutated along with the name of Shakriben, vide Mutation Entry No. 1643 dated 30.08.1993 though, according to the petitioner, the said respondent is not the legal heir of Gabhaji Chakuji Thakore. Upon her demise, the name of Rukhiben came to be deleted vide Mutation Entry No. 1644 dated 01.09.1993.
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It is the case of the petitioner that out of the wedlock of Rukhiben with Ataji, Rukhiben had two sons, namely Galabji Ataji and Udaji Ataji. The petitioner asserts that when the alleged fraud of mutating his name as Amratji Gabhaji by respondent No. 5 came to the notice of the petitioners, they challenged both the Mutation Entries No. 1643 and 1644, by filing RTS Appeal No. 1356/2011 before the Deputy Collector who, after scrutinising the material on record, allowed the appeal and cancelled Mutation Entries Nos. 1643 and 1644, further directing the Mamlatdar, Daskroi, to mutate the names of the legal heirs of Gabhaji Chakuji Thakore and Rukhiben Chakuji Thakore, after verification of documents.
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Aggrieved by this order, respondent No. 5 filed RTS Revision No. 249/2012 before the Collector, respondent No. 2 herein. By an order dated 12.11.2013, the Collector dismissed the said revision application and confirmed the order dated 30.03.2012 passed by the Deputy Collector. Further aggrieved by the above-mentioned order of the Deputy Collector, as confirmed by the Collector, respondent No. 5 filed Revision Application No. 66/2014 before the SSRD, along with an application for the grant of interim stay. The SSRD rejected the application for stay vide an order dated 27.01.2015.
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It is the specific case of the petitioner that as no stay order was issued by the SSRD in favour of respondent No. 5, and the orders of the Deputy Collector as confirmed by that of the Collector that were under challenge by respondent No. 5 in the revision application were operative, the Mamlatdar initiated action in compliance with the order dated 30.03.2012 passed by the Deputy Collector and posted Mutation Entry No. 2439 regarding the deletion of the names of Gabhaji Chakuji Thakore and Shakriben Gabhaji Thakore, as they had passed away. The Mamlatdar also posted Mutation Entry No. 2440, mutating the names of the petitioners and respondents Nos. 6 to 12 as legal heirs of Rukhiben Ataji, daughter of Chakuji Thakore. For some reason, stated to be that the petitioner wanted a more detailed scrutiny of the said mutation entries in view of the alleged fraud committed by respondent No. 5, objections were raised by him against these entries. However, the said objections were later withdrawn. Mutation Entries Nos. 2439 and 2440 were certified on 01.09.2012.
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It is further the case of the petitioner that after a delay of four years from the date of the certification of Mutation Entries No. 2439 and 2440, respondent No. 5 thought it fit to challenge the order of the Mamlatdar certifying the said entries, before the Deputy Collector. It is specifically averred in the petition that respondent No. 5, who had always represented himself as Amratji Chanduji Thakore (as stated in the pedigree), for the first time represented himself as Amratji Chanduji alias Amratji Gabhaji Thakore, even though he is not a legal heir of Gabhaji Chakuji Thakore.
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This, according to the petitioner, was done by respondent No. 5 with the sole aim of re-opening issues that had attained finality, in retraction of his own declaration on oath that he has nothing to do with the property in question and is not a legal heir of Gabhaji Chakuji Thakore, after being unsuccessful in the litigation before the revenue authorities. The petitioner further asserts that during the pendency of the revision application filed by respondent No. 5 before the SSRD, the said respondent filed an application for the withdrawal of the revision application, though a copy thereof was not supplied to the petitioner. While permitting the unconditional withdrawal of the revision application, regarding which part of the order the petitioner has no grievance, the SSRD went further by directing the Deputy Collector to hear the appeals filed by respondent No. 5 on merits, by granting him an opportunity of hearing. It is this latter part of the order of the SSRD that the petitioner is aggrieved by. According to the petitioner, the appeals filed by respondent No. 5 before the SSRD against mutation entries posted in the revenue record, pursuant to the orders of the Deputy Collector and Collector that were challenged in the revision application before the SSRD, came to be withdrawn unconditionally, putting a confirmatory stamp of finality upon the said orders. By directing the Deputy Collector to hear those appeals on merits after passing the order of unconditional withdrawal would, according to the petitioner, amount to a reopening of issues that have attained finality, apart from depriving the petitioner from his legal right to raise preliminary objections. Another grievance raised by the petitioner is that after permitting the unconditional withdrawal of the revision application, the SSRD could not have issued directions for hearing the matter on merits after granting an opportunity of hearing, which direction seriously prejudices the petitioner and amounts to rehearing matter that have attained finality. It is in the above context that the petition has been filed, seeking the prayers mentioned above.
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On the other hand, the case of respondent No. 5 is that Rukhiben, the predecessor-in-title of the petitioner, was not a biological daughter of Chakuji Rajaji but was his step-daughter, who could not have inherited his property. It is further the case of respondent No. 5 that though he is not the biological son of Gabhaji Chakuji and Shakriben Gabhaji, he had been adopted by them and, therefore, on the death of Gabhaji, his name was rightly mutated in the revenue record along with that of Shakriben and the name of Rukhiben was rightly deleted. It is contended on behalf of respondent No. 5 that the entries to this effect were challenged belatedly by the petitioner after a lapse of eighteen years. Respondent No. 5 has also stated in his reply that three civil suits are pending, out of which one suit has been filed by the petitioner for partition, which fact has not been disclosed in the petition. The case of respondent No. 5 further is that the entries made pursuant to the orders of the Deputy Collector and Collector were posted without hearing him, therefore, he has a right to challenge them and no finality is attached to the said orders.
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The above facts have been briefly narrated as they have been brought on record by the pleadings and submissions of parties. However, at the same time, it is necessary to clarify that the scope and ambit of the petition is confined to the extent of the challenge made to the latter part of the impugned order of the SSRD and the prayer seeking the issuance of a Writ of Prohibition, restraining the Deputy Collector from proceeding with the appeals pending before him. The order under partial...
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