SCA/6665/1999 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.6665 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- =================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO =================================================== SEJUBEN WD/O RAICHAND BALUBHAIODE & 3-Petitioner(s) Versus COLLECTOR AND DIST MAGISTRATE & 2 - Respondent(s) =================================================== Appearance : MR BHARAT T RAO for Petitioner(s) : 1 - 4. MS MAITHILI MEHTA, AGP for Respondent(s) : 1 - 3. =================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 25/01/2008 ORAL JUDGMENT (1) Petitioner No.1 is a widow of deceased Raichand Balubhai Ode and the other petitioners are the legal heirs of the deceased. Deceased Raichand Balubhai Ode was SCA/6665/1999 2/9 JUDGMENT possessed of agricultural land bearing Block No.318 of Village Kotda, admeasuring 8 acres and 16 gunthas. In adjoining Block No.49, there was contiguous parcel of land, admeasuring 1 acre 2 gunthas which the deceased was cultivating since 1977 by encroaching upon the said land, which is admittedly government waste land. It appears that Mamlatdar, Deodar, in exercise of powers under Section 16 of the Bombay Land Revenue Code, 1879 initiated inquiry and assessed the penalty leviable for unauthorized occupation of the land in question, namely, 1 acre 2 gunthas. The deceased moved Collector, Banaskantha, respondent No.1, seeking regularization of the occupation of the land in question. On 08.06.1993 the said application was rejected by respondent No.1. (2) The petitioner carried the matter by way of appeal before respondent No.2 authority. The said appeal, namely, Appeal No.43 of 1993 came SCA/6665/1999 3/9 JUDGMENT to be allowed by passing an order dated 26.11.1993 in following terms: “ O R D E R Under the circumstances as stated above, Revision Application filed by the applicant is hereby allowed, and impugned order dated 8.6.1993 passed by the Collector, Banaskantha is hereby quashed and set aside. Further, keeping in view the observations made herein above, Collector, Banaskantha is hereby instructed to pass order in accordance with law regularising the encroachment within a period of 30 days in respect of the demand of the applicant to reglarise encroachment in accordance with the provisions of standing and existing resolutions of the government and by recovering the amount from him which is required to be recovered in accordance with law and aforesaid provisions towards the right of occupation / possession. Issued order today on this 26th November, 1993. By the order and in the name of Governor of Gujarat.” (3) Pursuant thereto it appears that on 11.07.1994 the Collector issued notice calling upon the petitioner to state in writing whether the petitioner was ready and willing to make payment of the specified amount. The petitioner replied vide communication dated SCA/6665/1999 4/9 JUDGMENT 08.03.1996. However, vide communication dated 25.04.1996 the Collector rejected the claim made by the petitioner on the ground that the land in question has a potential to be used for non-agricultural purpose and hence, cannot be regularized for agricultural purpose. (4) The petitioner carried the matter in revision before respondent No.2 authority but, vide impugned order dated 15.03.1999, the order made by the Collector was upheld. At this stage the petitioner has approached this Court with the petition. (5) Learned advocate for the petitioner, after narrating the aforesaid facts, submitted that the respondent authorities, namely, the Collector and respondent No.2 could not have taken a different view of the matter once the claim of the petitioner had been accepted in principle as could be seen from the earlier order dated 26.11.1993. (6) As against that the learned Assistant Government SCA/6665/1999 5/9 JUDGMENT Pleader resisted the petition and submitted that once the land in question was not amenable to use for agricultural purpose and had been surrounded by non-agricultural lands denoting various developmental activities the impugned order made by the revisional authority upholding the order of the Collector was not required to be interfered with. Learned AGP also invited attention to the original record of the State Government to submit that in fact even before passing the order in 1996 the Collector had approached the State Government pointing out the factum of the land having potentiality for non- agricultural use considering the development of surrounding lands and the State Government had in principle accepted the objection raised by the Collector and recorded a finding that the land in question could not be regularized. That it was in this backdrop of circumstances that the Collector had rejected the claim made by the petitioner. (7) Having heard the learned advocates for the respective parties it is apparent that the SCA/6665/1999 6/9 JUDGMENT impugned order made by the revisional authority upholding the order made by the Collector cannot be allowed to stand. As can be seen from the first order dated 26.11.1993 made by respondent No.2 it is apparent that in principle the State Government had accepted that the petitioner was entitled to have the unauthorized occupation regularized on payment of appropriate charges in accordance with law. The Collector was only required to compute the amount payable and call upon the petitioner to make the payment and regularize the unauthorized occupation within a period of 30 days. On plain reading of the said order dated 26.11.1993 the Collector was not left with any discretion or powers to take any other view of the matter. In law also, once an order is made by a superior authority/forum the subordinate authority/forum, unless and until specific directions have been made by the superior authority or forum, permitting the subordinate authority/forum to exercise such powers the SCA/6665/1999 7/9 JUDGMENT subordinate authority cannot disobey the directions of the superior authority. At the cost of repetition it is required to be noted that no such powers were reserved in favour of the Collector by the appellate authority in the first round. (8) In the aforesaid fact situation, the Collector could have not taken a different stand. This is more so when one reads the notice dated 11.07.1994 (Annexure-D) whereunder the Collector had merely called upon the petitioner to state whether the petitioner was ready and willing to make payment of the stipulated amount. In other words, even the Collector had at that point of time understood the order made by the appellate authority correctly and in accordance with law. Thereafter, the Collector could not have taken a different view of the matter merely on the basis of so-called personal visit and inspection of the land in question, as SCA/6665/1999 8/9 JUDGMENT submitted by the learned Assistant Government Pleader. (9) There is one more aspect of the matter. Though the correspondence between the Collector and the State Government is not on record even if one proceeds on the basis of submissions made on behalf of the State Government that subsequently the Government had framed an order asking the Collector not to grant the claim of the petitioner, it is apparent that not only nothing has been brought on record in this regard, but nothing has been shown which would permit the State Government to exercise such powers without withdrawing the valid order made by the State Government itself. Hence, till the point of time the first order dated 26.11.1993 was operational and was not either modified, disturbed or quashed either by a higher forum in appropriate proceedings or withdrawn, again in appropriate proceedings in accordance with law, the said order dated 26.11.1993 had to be given effect to in SCA/6665/1999 9/9 JUDGMENT entirety because that was the order made by the State Government. The Collector being a subordinate authority could not have travelled beyond the order made by the superior authority and hence, the order made by the Collector on 25.04.1996 could not have been made and the revisional authority vide impugned order dated 15.03.1999 could not have confirmed the said order. Therefore, the impugned order made by respondent No.2 on 15.03.1999 and the order dated 25.04.1996 made by respondent No.1 are hereby quashed and set aside. (10) The petition is allowed accordingly Rule made absolute. There shall be no order as to costs. Sd/- [ D.A. MEHTA, J ] *** Bhavesh*