Nandiniba Vishnusinh Parmar vs Shashikant Motilal Shah

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2020 Supreme(Guj) 234

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIKRAM NATH, A.J. SHASTRI, JJ.
Nandiniba Vishnusinh Parmar – Appellant
Versus
Shashikant Motilal Shah – Respondent
Letters Patent Appeal No. 61 of 2020, Special Civil Application No. 10883 of 2016, Civil Application (For Stay) No. 1 of 2019
Decided On : 27-01-2020

Advocates:
Advocate Appeared:
For the Appellants : Mr. B.M. Mangukiya, Ms. Bela A. Prajapati.
For the Respondent: Mr. J.K. Shah.

Headnote:
Writ petition – Writ petitioner before the learned Single Judge was taking undue advantage of the situation of there being no interim relief in favour of the respondents- appellants herein. Learned counsel submitted that once the writ petitioner received an adverse order, he cannot have a right to make a grievance of taking an advantage of the fact situation of there being no interim protection to the Revisionist before the Secretary. The writ jurisdiction is not required to be exercised ex debito justitiae and no futile writ is required to be issued. Held – The learned Single Judge has done due justice between the parties. The Secretary having erred in confirming the order, there was no option left for the learned Single Judge to set aside the order subsequently passed by the Collector based on the decision of the Secretary. The parties have an opportunity of getting a decision on merits by the Collector – Appeal dismissed. (Para 7)
Facts of the Case:
Writ petitioner before the learned Single Judge was taking undue advantage of the situation of there being no interim relief in favour of the respondents- appellants herein. Learned counsel submitted that once the writ petitioner received an adverse order, he cannot have a right to make a grievance of taking an advantage of the fact situation of there being no interim protection to the Revisionist before the Secretary. The writ jurisdiction is not required to be exercised ex debito justitiae and no futile writ is required to be issued.
Finding of the Court:
The learned Single Judge has done due justice between the parties. The Secretary having erred in confirming the order, there was no option left for the learned Single Judge to set aside the order subsequently passed by the Collector based on the decision of the Secretary.
Result: Appeal dismissed.

ORDER :

1. We have heard Shri B.M. Mangukia, learned counsel for the appellants and Shri J.K. Shah, learned Assistant Government Pleader for the State-respondents.

2. Chronology of events with respect to the controversy are as follows:-

1.	15.7.1968	Entry No. 3205 is recorded in favour of the present appellants in the revenue records.
2.	22.6.1979	Hereditary entry is also recorded in faovur of the appellants in the revenue records.
3.	2012	An appeal is filed by the private respondents, challenging the entries of 1968 and 1979, registered as RTS Appeal No. 182 of 2012.
4.	5.4.2013	The Deputy Collector dismissed the RTS Appeal No. 182 of 2012 of the respondents on the ground of extraordinary delay.
5.	3.5.2013	The respondents prefer revision before the Collector against order dated 5.4.2013 registered as RRT/ Revision/Case No. 25 of 2013-14.
6.	24.9.2013	The Collector allows RRT/Revision/Case No. 25 of 2013-14 filed by the private respondents and the matter is remanded to the Deputy Collector for a fresh consideration.
7.	October 2013	The present appellants prefer revision registered as MVV/HKP/SNR/41 of 2013 before the Secretary, challenging the order dated 24.9.2013. The revision remains pending without any interim orders.
8.	2013-2014	After remand order dated 24.9.2013, the appeal is registered afresh before Deputy Collector as Remand RRT/Appeal No. 233 of 2013.
9.	18.12.2014	The Deputy Collector, pursuant to the remand order dated 24.9.2013, again dismissed the appeal.
10.	2015	The respondents preferred revision before the Collector against the order dated 18.12.2014 registered as RRT Revision Case No. 165 of 201415. The said revision remains pending.
11.	12.4.2016	The Secretary decides the Revision No. 41 of 2013 preferred by the present appellants, by confirming the orders dated 24.9.2013 and also the order dated 18.12.2014 passed by the Deputy Collector (which was not the subject matter of the revision).
12.	3rd week of June 2016	The respondents prefer Special Civil Application No. 10883 of 2016 before this Court, challenging the order of Secretary dated 12.4.2016.
13.	21.7.2016	The Collector dismisses the RRT Revision Case No. 165 of 2014-15 for the reason that the Secretary has already taken a decision and as such, he does not need to examine the matter on merits and follows the order of the Secretary.
14.	25.09.2019	The respondents move a draft amendment challenging the order of the Collector dated 21.7.2016. The writ Court (learned Single Judge) allows the amendment application on the same day.
15.	26.09.2019	Amendment is carried out.

3. The learned Single Judge, vide judgment and order dated 21.10.2019, after hearing the learned counsels for the parties, allows the petition, sets aside the order dated 12.4.2016 passed by the Secretary for the reason that the Secretary ought not to have confirmed the order dated 18.12.2014 passed by the Deputy Collector, which was not under challenge before the Secretary, nor was it for its consideration. The Secretary was only required to consider the merits of the order dated 24.9.2013 passed by the Collector remanding the matter. The only scope of the Revision was whether the order of remand dated 24.9.2013 was right or wrong.

4. The learned Single Judge further sets aside the order dated 21.7.2016 passed by the Collector as it had not dealt with the matter on merits and had only followed the order passed by the Secretary. According to the learned Single Judge, once the Secretary had confirmed the order passed by the Deputy Collector dated 18.12.2014, although not within its scope of the Revision and since the appeal before the Collector was also against the same order

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