SHASHIKANT CHHAGANLAL PATEL Vs. NANDKISHORE OMKARMAL GUPTA

JUDGEMENT

(1.) Rule. Mr. J.T. Trivedi, learned advocate appearing on caveat for respondent No.1 appears and waives service of rule on behalf of the respondent No.1. Upon the direction of the Court, Mr. Desai, learned Assistant Government Pleader has appeared for the respondents No. 2, 3 and 4 and waives service of rule on behalf of respondents No. 2, 3 and 4. On the joint of request of the learned advocates, this matter is heard on merits for final disposal.

(2.) The present petition is preferred by the petitioners challenging the legality and validity of the order dated 28.3.2003 passed by the Principal Secretary, Revenue Department (Appeals) [Annexure 'A'] whereby the order of the Collector dated 26.12.2000 is set aside and the Collector is further directed to return the papers to the Mamlatdar for investigation as to whether there is any breach of section 63 of the Bombay Tenancy & Agricultural Lands Act, 1948 [hereinafter referred to as the Tenancy Act].

(3.) The contention raised on behalf of the petitioners by Mr. N.D. Nanavati, learned senior counsel appearing with Mr. Y.N. Ravani is that the Revenue Secretary has not considered the aspect regarding pendency of the Revision before the Gujarat Revenue Tribunal being Revision No. 105 of 2002 and staying of the order dated 1.10.2002 passed by the Deputy Collector. Mr. Nanavati further submitted that once the Mamlatdar and A.L.T. as per order dated 30th May 2002 had found that there is a breach of the provisions of section 63 and the land came to be forfeited under section 84 of the Tenancy Act, against which appeal was also preferred by the petitioners which came to be dismissed on 1.10.2002 against which Revision was preferred before the Tribunal, and the matter is pending before the tribunal, and therefore the Secretary, while exercising revisional jurisdiction under the Bombay Land Revenue Code, could not have directed for holding an inquiry under section 63 of the Tenancy Act. In his submission, if such observations in the operative portion of the order passed by the Secretary is allowed to stand, it may result into a denovo inquiry under section 63 of the Tenancy Act which is concluded atleast before two forums, viz. the Mamlatdar and Deputy Collector, and is pending before the Tribunal. Mr. Nanavati fairly submitted that the petitioners are not challenging the other portion of the order passed by the Secretary, i.e. so far as it relates to setting aside the order of the Collector dated 26.12.2000. He therefore submitted that the present petition is essentially for challenging the observations for holding an inquiry under section 63 of the Tenancy Act.