Madhuben WD/O Vinodbhai Mehta vs Prabhatbhai Jivabhai Patel

Rajendra M. Sareen, J

Heard Mr. Mihir Joshi, learned senior advocate appearing with Mr. Amar N. Bhatt, learned advocate appearing for the petitioners, Mr. Aum Kotwal,

learned advocate appearing for the respondent No.2 and Mr.Hardik Mehta, learned AGP appearing for the respondent Nos.28, 29 & 30 â€" State,

through videoconferencing.

The petitioners, in this petition have challenged the order dated 03.07.2020 passed by the Collector in RTS Revision No.148 of 2019, by which the

Collector has partly allowed the Revision of the respondent No.1 and directed modification of the order dated 15.07.2019 of the Prant Officer qua

Entry No.10478. The said Entry No.10478 was common qua two parcels of land bearing Block No.395 belonging to the respondent No.1 and Block

No.397 belonging to the petitioners and was based on the common judgment dated 02.01.2018 of the 5th Additional Senior Civil Judge, Gandhinagar in

two suits being Special Civil Suit No.40 of 1998 regarding the land of the petitioner being Block No.397 and Special Civil Suit No.41 of 1998 regarding

land bearing Block No.395 belonging to the respondent No.1 and others.

Mr. Mihir Joshi, learned senior advocate appearing for the petitioners has submitted that the respondent No.1 who filed the Revision has no concerned

with the petitioners’ land bearing Block No. 397 and the said order is partially without jurisdiction. Mr. Joshi, learned senior advocate has further

submitted that respondent No.1 who filed the Revision cannot be said to be “Person Aggrievedâ€. The original RTS Appeal before the Prant

Officer challenging the Entry No.10478 was filed by the respondent No.2 qua both the parcels of land. The said appeal was dismissed vide order

dated 15.07.2019 against which respondent No.2 did not file any Revision. However, the Revision was filed by respondent No.1 who has no concern

with the land of the petitioners being Block 397. He has further submitted that even otherwise in the Revision of the respondent No.1, who has no

concern with the land of the petitioners’ land, the order affecting Entry No.10478 qua petitioners’ land cannot be passed and there is a clear

jurisdictional error in passing the impugned order qua land of the petitioners bearing Block 397. He has further submitted that the Collector has failed

to appreciate that the Revision was filed by the respondent No.1, who was concerned with land bearing Block No.395 and has no concern with the

Block No.397, belonging to the petitioners and the respondent No.1 had no locus standi to challenge the order dated 15.07.2019 qua land bearing Block

No.397 belonging to the petitioners.

Mr. Mihir Joshi, learned senior advocate appearing for the petitioners further submitted that one round of litigation has been ended and the second

round has started by the party who has no locus standi. As such the respondent No.1 has abused the process of law by filing RTS Revision without

locus. Hence, it is prayed to admit this petition and protect the petitioners qua land bearing Block No.397 belonging to the petitioners.

Per contra, the emphasis by Mr.Aum Kotwal, learned counsel for the respondent no.2 and Mr. Hardik Mehta, learned AGP for the respondent

Nos.28, 29 & 30 was on the submission that apart from the fact that the petition is not maintainable in the light of the alternative remedies and when

the alternative remedy is available, this Court may not entertain this petition.

Having heard the learned counsel for the respective parties and considering the material on record, it appears that the parties to the present petition

are facing litigation since long and Entry No.10478 was made pursuant to the judgment passed in Special Civil Suit Nos.40 and 41 of 1998, by which

both the suits filed by Pradip Rameshbhai Patel against the present petitioners as well as private respondents, came to be dismissed. Pursuant to the

said judgment common Entry No.10478 was made instead of separate entry. As this entry was made RTS Appeal was filed by the respondent No.2

challenging Entry No.10478 and the said Appeal was subsequently dismissed on 15.07.2019. Surprisingly, though the judgment of the Civil Court in

Special Civil Suits No. 40 and 41 of 1998 was in favour of the defendants, wherein the respondent No.1 was one of the defendants, RTS Appeal was

filed by respondent No.1 and not by respondent No.2, against whom order in RTS Appeal No.148 of 2018 was passed. As such, the respondent No.1

had no locus standi through the party of the suit and is succeeded in the suit. It appears that a party who has no locus standi can be termed to be a

person lacking substantial right. This court is of the opinion that the revenue proceedings, particularly RTS Appeal is at the instance of the person

lacking substantial right which cannot be countenanced. In the opinion of this court, the same would be abuse of process of law.

It cannot be disputed that normally the jurisdiction under Article 226 of the Constitution of India would not be exercised if the alternative efficacious

remedy is available. However, it cannot be disputed that every general rule has exceptions. When the person invokes the jurisdiction of the High Court

under Article 226 of the Constitution of India directly without resorting to the alternative remedy, the petition normally would not be entertained;

however when such a remedy is exhausted in the previous round of litigation and subsequent round of litigation is found to be the abuse of process of

law, in the opinion of this court, such class of cases would fall within exception to the general rule of not entertaining the petition on the ground of

alternative remedy. In the facts of the present case, as indicated above, the revenue pursuit by the respondent No.2 is prima facie abuse of process of

law. Therefore this court is not inclined to dismiss the petition on the mere ground of availability of alternative remedy to the petitioners.

In view of the above, the following order is passed:

Rule returnable on 24.08.2020. Mr. Aum Kotwal, learned advocate waives the service of notice of Rule on behalf of the respondent No.2 and

Mr.Hardik Mehta, learned AGP waives the service of notice of Rule on behalf of the respondents No. 28, 29 & 30.

There shall be interim relief in terms of Para 7(B)(ii) qua Block No.397, till final disposal of this petition.

Learned advocate for the petitioners to send copy of the petition to the learned AGP as well as Office of the Government Pleader through Email.

Direct service is permitted qua other private respondents, to be served through Email.