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SCA/10567/2010 2/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10567 of 2010
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SHANTUBHAI
MOTIBHAI PARMAR
Versus
DEPUTY
COLLECTOR (LAND REFORMS) APPEAL & OTHERS
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Appearance :
Mr Navin
Pahwa for M/s Thakkar Associates for the petitioner
None
for Respondent(s) : 1 - 18.
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 03/09/2010
ORAL
ORDER
By
way of this petition the petitioner has chllenged the order dated
29th July 2010 of the Gujarat Revenue Tribunal passed in
Revision Application No.TEN/BA/40 of 2009. Though the petition is
styled as a petition filed under Article 226 of the Constitution of
India, it should be under Article 227 of the Constitution of India.
Articles 226 and 227 of the Constitution of India are reproduced
hereinbelow:-
226.
Power of High Courts to issue certain writs.- (1) Notwithstanding
anything in Article 32 every High Court shall have power, throughout
the territories in relation to which it exercises jurisdiction, to
issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any
other purpose.
(2) The
power conferred by clause (1) to issue directions, orders or writs to
any Government, authority or person may also be exercised by any High
Court exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part, arises for the exercise
of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those
territories.
(3)
Where any party against whom an interim order, whether by way of
injunction or stay or in any other manner, is made on, or in any
proceedings relating to, a petition under clause (1), without –
(a)
furnishing to such party copies of such petition and all documents
in support of the plea for such interim order, and
(b)
giving such party an opportunity of being heard, makes an
application to the High Court for the vacation of such order and
furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court
shall dispose of the application within a period of two weeks from
the date on which it is received or from the date on which the copy
of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the
expiry of the next day afterwards on which the High Court is open;
and if the application is not so disposed of, the interim order
shall, on the expiry of that period, or, as the case may be, the
expiry of the said next day, stand vacated.
(4) The
power conferred on a High Court by this article shall not be in
derogation of the power conferred on the Supreme Court by clause (2)
of article 32. Constitutional validity of Central laws not to be
considered in proceedings under article 226.
227. Power of superintendence over all courts by the High Court. –
(1)
Every High Court shall have superintendence over all courts and
tribunals throughout the territories in relation to which it
exercises jurisdiction.
(2)
Without prejudice to the generality of the foregoing provision, the
High Court may –
(a)
call for returns from such courts;
(b)
make and issue general rules and prescribe forms for regulating the
practice and proceedings of such courts; and
(c)
prescribe forms in which books, entries and accounts shall be kept by
the officers of any such courts.
(3)
The High Court may also settle tables of fees to be allowed to the
sheriff and all clerks and officers of such courts and to attorneys,
advocates and pleaders practising therein:
Provided
that any rules made, forms prescribed or tables settled under clause
(2) or clause (3) shall not be inconsistent with the provision of any
law for the time being in force, and shall require the previous
approval of the Governor.
(4)
Nothing in this article shall be deemed to confer on a High Court
powers of superintendence over any court or tribunal constituted by
or under any law relating to the Armed Forces.
The
petitioner has made the following prayers in paragraph 9 of the
petition:-
(A) YOUR
LORDSHIPS may be pleased to issue a writ of mandamus or a writ of
certiorari or any other appropriate writ, order or direction,
quashing and setting aside the impugned order dated 29.07.2010 passed
by the Gujarat Revenue Tribunal in Stay Application in Revision
Application No.TEN/BA/40/2009 as being illegal, unjust, contrary to
law, unreasonable and contrary to the facts and evidence and
violative of Article 14 and 19 of the Constitution of India, in the
interest of justice;
(B) YOUR
LORDSHIPS may be pleased to restrain the respondents from
transferring, selling, dealing with and/or alienating the subject
land pending the admission, hearing and final disposal of the
petition, in the interest of justice;
(C) YOUR
LORDSHIPS may be pleased to stay the implementation, operation and
execution of the order dated 29.07.2010 passed by the Gujarat Revenue
Tribunal in Stay Application in Revision Application
No.TEN/BA/40/2009 and further be pleased to direct the parties to
maintain status quo in respect of the subject land, pending the
admission, hearing and final disposal of the petition, in the
interest of justice;
(D) xxx xxx xxx Considering
the prayers made by the petitioner, the main prayer is challenging
the order of the Tribunal and no other prayer is made which pertains
to Articles 14 and 19 or 226 of the Constitution of India.
Therefore, substantially this matter is under Article 226 of the
Constitution of India. In my view, the practice which is adopted by
the petitioner is required to be deprecated.
The
impugned order which is subject matter of the challenge is of 29th
July 2010 whereby the Tribunal, after considering the evidence, has
come to the conclusion that the petitioner is neither in possession
of the land nor his name is reflected in the revenue record.
The
counsel for the petitioner has attempted to rely upon the decision of
the Honourable Supreme Court in the case of Maharwal Khewaji
Trust, Faridkot v. Baldev Dass,
reported in AIR 2005 SC 104. In my view, the rights which
are considered under the revenue proceedings is different than civil
proceedings. Since the petitioner is neither in possession of the
land nor his name is reflected in the revenue record, it is not
appropriate to disturb the findings of the Gujarat Revenue Tribunal.
Hence, the petition deserves to be dismissed and is dismissed
accordingly.
(K.S.
Jhaveri, J.)
*mohd
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