Gujarat High Court
Judgename :J.N.Bhatt
KALPATARU LAND DEVELOPMENT PRIVATE LIMITED - Appellant
Versus
ASSISTANT COLLECTOR,surat - Respondent
S.C.A. 6511 of 1990
Decided On : 03/14/1996
Constitution of India,1950 - Article 226 and 227 - Companies Act, 1956 - Petitions common questions are involved are being disposed of by this common judgment - It appears from record that had also sold remaining area of said survey number in year to one others - Petitioners in other petitions are purchasers of various plots and parcels of land of survey number - Assistant Collector of had issued show cause notice to said for cancellation of entry – Held, Petitions have common questions pertaining to same subject matter of survey number all of them are required to be allowed on ground that impugned order is contrary to provisions of Code and also of Rules and therefore is illegal and without jurisdiction - Expression commissioner has to be now read as government about which there is no dispute in this group of petitions - Rule is incorporated in Chapter which deals with record of rights - In case of any change or mutation in a disputed case formal inquiry is required to be conducted - After inquiry is conducted will have to certified provision of appeal is made in Rule provision is made for revision - Court is amply clear from bare perusal of provisions of Rules that Government may call for and examine record of inquiry or proceedings of any subordinate revenue officer held Rules for purpose of satisfying as to regularity legality or propriety of proceedings – Court is not a case that power to hear revision is delegated to some authority Rules impugned order is illegal and is contrary to provisions – Petitions allowed(Para 12)
( 1 ) IN this batch of petitions under Arts. 226 and 227 of the constitution of India, common questions are involved. Therefore, they are being disposed of by this common judgment.
( 2 ) THERE are 22 petitions and facts are almost common and therefore, the facts in Special Civil Application No. 6511 of 1990 are mentioned. The petitioner is a company incorporated and registered under the Companies Act, 1956. One Balvantrai p. Vyas was the owner of part and parcel of land situated at village Abhava bearing survey number 506 (original survey number 400) in Surat District admeasuring approximately 1,138 acres of land.
( 3 ) BY mutation entry No. 861, dated 15-1-1985 pursuant to the order recorded in Revision No. TEN A. S. 8 of 1974 and also pursuant to the order passed by the civil Judge (S. D.), Surat and also by the Gujarat Revenue Tribunal dated 8-4-1976, name of one Balvantrai P. Vyas came to be entered as owner of part of survey number 506 admeasuring about 1,138 acres-8 gunthas.
( 4 ) THERAFTER, by mutation entry No. 987 recorded on 10-10-1988 pursuant to a consent decree dated 12-9-1986, passed by the High Court of Bombay in Original suit No. 2466 of 1986, the said Balvantrai P. Vyas sold the land by executing sale deeds for sale in respect of his Hissa No. 1 to 21, 28, 29, 36, 37 and 48 to 51 out of survey number 506-part, admeasuring 700 acres. It appears from the record that Balvantrai Vyas had also sold remaining area of the said survey number 506 in the year 1987 to one Shantilal Prabudas Patel and others. The petitioners in other petitions are the purchsers of various plots and parcels of land of survey number 506. The Assistant Collector of Choryasi Prant, Surat had issued show cause notice to the said Balvantrai P. Vyas for cancellation of entry No. 861 dated 15-1-1985. Thus, Balvantrai Vyas was called upon to show cause why the said entry should not be cancelled. The petitioner in the first petition and some of the petitioners in other petitions were not even served with show cause notices. In fact, in the first petition, the petitioner was sold a part of the disputed land and mutation entry No. 987 dated 10-10-1988 was carried out in the name of the petitioner company. Despite this fact, notice was not issued to the petitioner. It is also the grievance that many other petitioners in this batch of petitions were not issued show cause notices.
( 5 ) THE Assistant Collector, Choryasi Prant, Surat, after hearing Balvantrai Vyas, vide an order dated 31-12-1989 held that entry No. 861 dated 5-1-1985 made in respect of the disputed land bearing survey number 506 is improper and, therefore, it was ordered to be cancelled. Thus, the said entry is ordered to be cancelled by the Assistant Collector. It is the case of the petitioner in the first petition and also by some of the petitioners in other petitions that respondent No. 1 had never communicated passing of the said order. The petitioners having come to know about the said order had approached the concerned authority on or about 16-7-1990. The petitioners in other petitions had also not received notice under Sec. 135 of the bombay Land Revenue Code, 1879 ("blr Code" for short ). Consequent upon the impugned order of respondent No. 1, who cancelled the mutation entry No. 861, respondent No. 2, Talati-cum-Mantri proposed to cancel the mutation entry. The petitioners being aggrieved by the impugned order of respondent No. 1 and proposed action of cancellation of mutation entry No. 861 by respondent No. 2, have come up before this Court challenging its legality and validity.
( 6 ) THE contention of the petitioners is that the impugned order is without jurisdiction and is illegal.
( 7 ) THE land in question is bearing revenue survey number 506 (old survey number 400) and whole admesuring 2,763 acres-20 gunthas. The entry in question was proposed on the order passed by the G. R. T. in Appeal No. TEN 8 of 1974 decided on 8-4-1976. It was an appeal under Rule 9 o
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