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2020 Supreme(Guj) 818
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA., J.
AHEMADBHAI IBRAHIMBHAI PATEL
Versus
STATE OF GUJARAT
R/SPECIAL CIVIL APPLICATION NO. 10487 of 2020
Decided On : 28-10-2020
For The Appellant : MR JIGAR P RAVAL
For The Respondent: MR ROHAN SHAH, AGP
Point of Law: It is inevitable in a hierarchical system of Courts that there are decisions of the supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary. When I sat in the Court of Appeal I sometimes thought the House of Lords was wrong in overruling me. Ever since that time there have been occasions, of which the instant appeal itself is one, when, alone or in company, I have dissented from a decision of the majority of this House. But the judicial system only works if someone is allowed to have the last word and if that last word, once spoken, is loyally accepted
Headnote:
Bombay Tenancy and Agricultural Lands Act, 1948 - Section 63 – Service of notice – Land Issue – Mutation name entry – Will - Violation of provisions of Section 63 - Seeking order or direction for quashing and setting aside impugned order Annexure-F passed by Ld. Special Secretary, Revenue Department in Revision Application and be further pleased to direct respondent authorities to certify entry regarding mutation of name of present petitioner in revenue record of said land - It can be seen that, If any question arises as to whether a person is an agriculturist or not, such a question can only be determined under provisions of Act, 1948. The aforesaid Act is selfsufficient in nature which provides the definition of the authority, determination of status and machinery for remedies thereof.
Facts of the case: One Khodabhai Narsinhbhai Harijan was original owner of the land bearing block no. 185 (Old Survey admeasuring 7386 sq. mtrs. of village - Said original owner executed a WILL in favour of the present petitioner regarding the said land - Original owner expired - Thereafter present petitioner applied for probate certificate regarding the said WILL by filing Probate Application - Civil Court by order dated 4/9/13, granted probate in favour of present petitioner - On basis of the WILL of original owner and on basis of probate certificate, present petitioner filed an application before Mamlatdar, Vadodara on or about 16/12/2014 for mutation of the name as owner of said land in revenue record - Entry was mutated in revenue record - Circle Officer cancelled said entry mainly on ground that the said land is a new tenure land and the petitioner has not produced any order regarding the sale and other papers.
Findings of the court: Petitioner is well founded and deserves to be upheld -It is not even the case of the Department that the decision of this Court in Bharat Textiles Works (supra) has been stayed by the Hon'ble Supreme Court - Hence, so far as this Court is concerned, the point is concluded. It is settled law that unless and until decision is reversed by a superior Court, it holds the field - It also cannot be gainsaid that the second respondent is an inferior Tribunal subject to supervisory jurisdiction of this Court and this Court can exercise jurisdiction over him by invoking Art. 227 of the Constitution - In our considered view, therefore it was not open to the second respondent to ignore the decision of this Court or to refuse to follow it on a specious plea of verdict being not accepted by Department and that matter was carried further and was pending before Supreme Court.
Result: Petition allowed.
ORDER :
1. Heard learned advocate Mr. Jigar Raval for the petitioner and learned Assistant Government Pleader Mr. Rohan Shah for the respondents- State through video conference.
2. Issue Rule returnable forthwith. LeaFned Assistant Government Pleader Mr. Rohan Shah waives service of notice of rule on behalf of the respondents-State.
3. Considering the controversy arising in the petition which is in narrow compass, with the consent of the learned advocates appearing for the respective parties, the matter is taken up for hearing today.
4. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs:
“(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue an appropriate writ, order or direction for quashing and setting aside the impugned order Annexure-F passed by the Ld. Special Secretary, Revenue Department in Revision Application No. MVV/HKP/VDD/89/2018 dated 1/2/2020 and be further pleased to direct the respondent authorities to certify the entry no.3762 regarding the mutation of the name of the present petitioner in the revenue record of the said land.
(C) Pending hearing and till final disposal of this petition, Your Lordships may be pleased to stay the implementation, execution and operation of the impugned order Annexure-F passed by the Ld. Special Secretary, Revenue Department in Revision Application No. MVV/HKP/VDD/89/2018 dated 1/2/2020 and be further direct the respondents to maintain the status quo qua the said land i.e. land bearing block no. 185 (Old Survey NO. 138 admeasuring 7386 sq. mtrs. of village Dhaniyavi, Tal. & Dist. Vadodara.
(D) Any other relief deemed just and proper may please be granted in the interest of justice.”
5. The brief facts of the case are as under:
5.1 One Khodabhai Narsinhbhai Harijan was the original owner of the land bearing block no. 185 (Old Survey NO. 138 admeasuring 7386 sq. mtrs. of village Dhaniyavi, Tal. & Dist. Vadodara. The said original owner executed a WILL dated 30/4/2003 in favour of the present petitioner regarding the said land. The original owner expired on 20/1/2004.
5.2 Thereafter the present petitioner applied for probate certificate regarding the said WILL by filing Probate Application No.137/12. Civil Court, Vadodara by order dated 4/9/13, granted the probate in favour of the present petitioner.
5.3 On the basis of the WILL of the original owner and on the basis of probate certificate, the present petitioner filed an application before Mamlatdar, Vadodara on or about 16/12/2014 for mutation of the name as owner of the said land in the revenue record. Entry no.3762 was mutated in the revenue record. The Circle Officer, Vadodara, cancelled the said entry on 30/3/15 mainly on the ground that the said land is a new tenure land and the petitioner has not produced any order regarding the sale and other papers.
5.4 Against the order of circle Officer, Vadodara, the petitioner preferred RTS Appeal No.332/15 before the Deputy Collector, Vadodara. The Deputy Collector, Vadodara by order dated 30/3/16, rejected the appeal of the petitioner.
5.5 The petitioner thereafter preferred revision no. RTS/RA/90/17 along with the delay condonation application. The Collector, Vadodara by judgment and order dated 19/12/17, rejected the revision of the present petitioner.
5.6 The petitioner thereafter preferred Revision Application No. MVV/HKP/VDD/89/18 before the respondent no.2 before the Special Secretary, Revenue Department who by order dated 1/2/2020, rejected the revision of the petitioner.
5.7 Being aggrieved by the said order, the petitioner has preferred the present petition.
6.1. Learned advocate Mr. Raval appearing for the petitioner submitted that the facts of the case of the petitioner are identical with the facts before this Court in case of Raghuvirsinh Sardarsinh Saluja Legal Heirs v. Special Secretary (Appeals) reported in 2019 JX (Guj) 966, wherein, this Court (Coram
