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SCA/12515/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12515 of 2011
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HITENDRASINH
GAMBHIRSINH JADEJA,L.H. OF LILABEN PATUBHA - Petitioner
Versus
MAHENDRASINH
RATANSINH SANGOI & 3 - Respondents
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Appearance :
MR
CB UPADHYAYA for
Petitioner
None for Respondents : 1 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 10/10/2011
ORAL
ORDER
This matter was called out twice.
On both the occasions, none had remained present for the petitioner.
The petitioner has filed this
petition under Article 226 of the Constitution of India for the
following prayers :
“(A) Be
pleased to admit and allow the petition;
(B)
Be pleased to quashed and set aside the order dated 06/04/2011 passed
by Special Secretary in the appeal being no MVV/Kutch/Inam/01/2010
vide an order dated 06/04/2011 as well as order dated 18/01/2011
passed by Mamlatdar (Inam Abolition) Bhuj-Katch.
May
be pleased to declare that the respondent No. 1 is not a tenant and
does not acquire any tenancy rights in accordance with Section 3
(14) of Bombay Land Revenue Code as well as entry No. 122.
(D)
Be pleased to call for the record and proceedings in connection with
the case being No. 203/2009 before the Special Mamlatdar (Innam
Abolition), Bhuj.
(E)
Be pleased to pass any such or further order/s as it may deemed fit
by the Hon’ble Court.”
Thus,
the petition is essentially against the order dated 6.4.2011 passed
by respondent no. 4 vacating the earlier stay order granted in the
Revision Application filed by petitioner being Revision Application
No. Kutch/Inam/1/ 2010.
The facts, as could be culled out
from the memo of petition deserve to be set out as under:
It appears that the petitioner is
a legal heir of the widow of Late Shri Jadeja Pathubha Hakaji. The
land bearing Survey No. 422 situated at village : Deshalpar (Kanthi)
was under the possession of the ancestral of the petitioner since
very long and name of mother of petitioner was displayed in the
revenue record. Vide Entry No. 122 made in Hakk Patra, Form No.6,
name of Late Shri Dhanji Jesang came to be entered by way of Giro
Rights vested by Lilaba in the aforesaid land bearing Survey No. 422
situated at Mauje Deshalpar (Kanthi), Taluka: Mundra, Dist.: Kutch.
The application came to be made by respondent no. 1 for cancellation
of the entry made under the provisions of Innam Ordinance and said
Application came to be decided in favour of the applicant i.e.
respondent no. 1 by an order dated 18.10.2010 without giving any
opportunity to the petitioner. The petitioner preferred an Appeal
against the said order before the Special Secretary seeking
quashment and setting aside the judgment and order dated 18.10.2010.
On presentation of the application, the stay was granted vide order
dated 2.11.2010 and it was continued till further hearing took place
and ultimately on 2.11.2010 it was not extended vide impugned order.
Hence, present petition.
The order impugned in this
petition contained specific reasons, which did not be delve into at
this stage, as it would affect the adjudication in the main matter.
However, as the petition is filed, prima-facie there appears to be
justification in not continuing the interim relief in the matter.
The authority while recording the submissions made on behalf of
opponent, has mentioned in the order that the very application is
not maintainable as the authority does not have prima-facie
jurisdiction to entertain the application. No title or document for
title are produced. The entry No. 122 is of the promulgation of 1960
and is in possession of the opponent. The applicant is not residing
at Kutch. He is trading in Bhavnagar. Delay and latches are there.
It is also mentioned in the order that the applicant of the
application had applied under Section 2(10) and 7(6) for ending the
mortgage and vide order dated 29.6.2010 there is an order of
status-quo and nothing is clear after passing of period of 30 years.
All these issues in my view, need
not be adjudicated at this stage under Article 227 of the
Constitution of India, though, petition is styled to be filed under
Article 226 of the Constitution of India. The matter being bereft of
merits, deserves rejection and is rejected accordingly. The
observations made in this order is entirely for considering as to
whether the extra ordinary jurisdiction is invoked and it shall not
have any bearing in final disposal of main application. There shall
be no order as to costs.
(S.R.BRAHMBHATT,
J.)
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