Gujarat High Court
Amthiben Nathabhai Patel vs State Of Guajrat Thr' Secretary & 14 on 18 April, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/15999/2005 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15999 of 2005
==========================================================
AMTHIBEN NATHABHAI PATEL....Petitioner(s)
Versus
STATE OF GUAJRAT THR' SECRETARY & 14....Respondent(s)
==========================================================
Appearance:
MR A J PATEL, ADVOCATE for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 5 - 9 , 13.1 - 13.3 , 14 - 15
MR RAKESH PATEL, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2 - 4
RULE UNSERVED for the Respondent(s) No. 13.1 - 13.3 , 14 - 15
==========================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 18/04/2017
ORAL ORDER
1. Heard Mr.A.J. Patel, learned advocate for the petitioner and Mr.Rakesh Patel, learned AGP.
2. In present petition, the petitioner has prayed, inter alia, that:
"15(A) This Honourable Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned orders at Annexure 'F' and 'G' hereto and consequently restoring mutation entries at Annexure 'A' and 'B' hereto;"
3. The petitioner felt aggrieved by orders dated Page 1 of 9 HC-NIC Page 1 of 9 Created On Mon Aug 14 03:00:10 IST 2017 C/SCA/15999/2005 ORDER 21.11.1998 and 1/7.6.2005 and has assailed the said orders in present petition. The petitioner has raised below mentioned contentions:
"(1) That the authorities below committed an error in not properly appreciating the provisions of section 68(2) of the Code in the context of the facts of the present case while passing the impugned orders. The impugned orders are, therefore, contrary to law and and are liable to be quashed and set aside on this ground alone.
(2) That the authorities below committed an error in not properly appreciating the law laid down by this Honourable Court in it s judgment reported in 1997 (3) 2016 and several other judgments to the effect that before a particular land is considered to be a new tenure land, a detailed enquiry is required to be made to find out as to whether the land was granted to the holder under any Tenure Abolition Act, or the Tenancy Act or in lieu of service rendered by the holder to the village people. In the present case the competent authority while effecting mutation entry No.1886 has clearly found on verification from the revenue record and the statements of the persons concerned that the land was never granted to the holder nor was there any entry in that behalf and that the entry regarding land being new tenure land appeared in the revenue record since the year 192930 without the re being any basis.
Thus the mutation entry in question was effected after due verification and it was certified after due satisfaction by the competent authority. In that view of the matter, the said mutation entry could not have been cancelled. The impugned orders are, therefore, liable to be quashed and set aside on this ground also.
(3) That the authorities below committed an error in not properly appreciating that the said mutation entry was effected in accordance with the guidelines laid down in the Circular dated 2191955 issued by the Revenue Department of the then Government of Bombay and the Resolution dated 1631982 passed by the Revenue Department of the Government Gujarat.
(4) That the authorities below committed a n error in not properly appreciating that in the Government Circular dated 2191955 issued by the then Government of Bombay it has been clearly stated that mere mention of the words new tenure" in Village form would not itself indicate that the grantis one kind or the other; that it would not be legally feasible to infer Page 2 of 9 HC-NIC Page 2 of 9 Created On Mon Aug 14 03:00:10 IST 2017 C/SCA/15999/2005 ORDER therefore that particular condition, for example, of inalienability or impartibility was attached to the land and, therefore, the land cannot be forfeited only on the basis of such entries Annexed hereto and marked Annexure 'H' is a true copy of the said circular.
(5) That the authorities below committed an error in not properly appreciating that in the Government Resolution dated 1631982 it has been clearly stated that the Government has decided to convert lands of new tenure held since 1111970 into old tenure without recovering a my amount of premium. Annexed hereto and marked Annexure 'I' is a true copy of the said Government Resolution.
(6) That the authorities below committed an error in ignoring the guidelines and norms laid down and prescribed in the aforesaid Government Circular and Resolution at Annexures 'H' and 'I' hereto; and, therefore the impugned orders are liable to be quashed and set aside on this ground also.
(7) That the authorities below committed an error in not appreciating that more mention of words "new tenure" in Village Form No. 7 & 12 without any order or entry justifying such entry would not automatically convert the land into new tenure in the absence of the definition of the term "new tenure" either in the Code or under any Land Revenue laws. The impugned orders are, therefore, liable to be quashed and set aside on this ground also.
(8) That the action on the part of the authorities below in cancelling the mutation entry effected in the year 1995 after a lapse of more than 3 years is arbitrary, discriminatory and violative of the petitioner's fundamental right guaranteed under Article 14 of the Constitution of India; and, same requires to therefore, the same requires to be corrected by an appropriate writ of this Honourable Court.
(9) That the authorities below committed an error in not properly appreciating that on the faith of the mutation entry in question the petitioner and members of her family have purchased the land in question by registered saledeeds that mutation entries have also been effected in the revenue record and the same have also been certified by the competent authority in on due verification and thereafter the petitioner and her members of the family have acted to their prejudice on the faith of the said mutation entries. The impugned orders are, therefore, liable to be quashed and set aside on this ground also.
Page 3 of 9HC-NIC Page 3 of 9 Created On Mon Aug 14 03:00:10 IST 2017 C/SCA/15999/2005 ORDER (10) That the impugned orders are even otherwise illegal and bad in law and contain errors apparent on the face of the record and as such they are liable to be quashed and set aside."
4. So as to justify and support the said contentions, the petitioner has stated below mentioned facts:
"2. The petitioner says that the land bearing Revenue Block Nos.63, 64 and 65 of village Tarapur, Taluka and Dist. Gandhinagar was owned possessed and cultivated by respondents No.5 to 12. The said land was shown to be new tenure land in Village Form Nos.7 & 12 since the year 195152. It may be significant to point out at this stage that however, there was no basis on which this entry was effected in the revenue record. Since this land was held by the aforesaid respondents since the time of their forefathers and since according to them, it was not granted to their forefathers under any Land Revenue Cod e or a my other law, they applied to the competent authority to delete the said words new tenure" from the revenue record.
3. The petitioner says that after verifying the revenue record and recording statements of the holders, the competent authority effected mutation entry No. 1886 in Village Form No. 6 deleting the words new tenure" from the revenue record, on 1951995. The petitioner says that thereafter, after due verification, Deputy Mamlatdar (Revenue), the Gandhinagar by his order dated 2861995 certified the said mutation entry Annexed hereto and marked Annexure 'A' is a true copy of the said mutation entry.
4. The petitioner says that since the petitioners and members of her family found that the title to the land in question was clear and marketable as it was an old tenure land, Pravinbhai Nathabhai Patel, Rajendrabhai Nathabhai Patel and Narendrabhai Nathabhai Patel purchased land bearing Block No.63 for a total consideration of Rs.4,30,000/ from respondents No.5 to 12 herein by a registered saledeed. The petitioner says that on the basis of the said saledeed, mutation entry No.1896 came to be effected in village Form No.6 on 1681995 and it came to be certified on 14111995 by the Deputy Mamlatdar (Revenue), after due verification and having been satisfied that the holders were agriculturists on the date of the transaction. Annexed hereto and marked Annexure 'B' is a true copy Page 4 of 9 HC-NIC Page 4 of 9 Created On Mon Aug 14 03:00:10 IST 2017 C/SCA/15999/2005 ORDER the said mutation entry.
5. The petitioner says that similarly, the petitioner purchased land bearing Block No.64 from respondent No.6 by a register ed saledeed, for n amount of Rs.65,000/ by a registered saledeed. On the basis of the said saledeed, mutation entry No.1895 came to be effected in village Form No.6 on 981995 and it came to be certified on due verification by the Deputy Mamlatdar (Revenue), k.c on 14111995. Annexed hereto and marked Annexure c is a true copy of the said mutation entry.
6. The petitioner says that similarly, the petitioner purchased land bearing Block No. 65 from respondent No. 5 by a registered saledeed for an amount of Rs.30 On the basis of the said saledeed mutation entry No. 1894 came to be effected in village Form No. 6 on 981995 and it came to be certified in due course on due verification by the Deputy Mamlatdar (Revenue) on 12111995 Annexed hereto and marked Annexure 'D' is a true copy of the said mutation entry.
7. The petitioner says that thus, the petitioner and three other members of her family came to be the owners and occupants of the aforesaid three Blocks of land under the registered sale transactions and mutation entries can me to be effected in the revenue record in their names and also the same came to be certified in due course on 12/14111995.
8. The petitioner says that thus, the names of the petitioner and members of her family came to be entered in the revenue record on 981995; and, therefore, the revenue authorities were aware about the fact that the petitioner and members of her family were the legitimate holders of the land in question However, it appears that behind the back of the petitioner and members of her family, the Prant officer, Gandhinagar submitted a report to the collector, Gandhinagar to the effect that mutation entry No.1886 was not legal and it required to be taken into suo motu revision.
9. The petitioner says that the Collector, Gandhinagar, therefore, initiated suo motu proceedings for revising the order dated 2861995 passed by the Deputy Mamlatdar (Revenue) which were numbered as C.B.RTS Revision Application No.20 of 1996. The petitioner says that notwithstanding the fact that the name of the petitioner and those of members of her family appeared in the revenue record the Collector did not implead them as parties to the said proceedings nor were any notices served on them; and ultimately when the petitioner and members of her family ca me to know Page 5 of 9 HC-NIC Page 5 of 9 Created On Mon Aug 14 03:00:10 IST 2017 C/SCA/15999/2005 ORDER about the said proceedings, they submitted written reply and produced all the relevant documents in support of their case. Annexed hereto and marked Annexure E' is a true copy of the said written reply.
10. The petitioner says that the Collector, 10 Gandhinagar, however, ignored all nor and the written reply and the documents produced along wit the said written reply on behalf of the petitioner and members of her family; and ultimately by his order dated 2111 1998 directed that mutation entry No. laa6 be cancelled and accordingly mutation entry No.1896 also gets automatically cancelled. Annexe hereto and marked Annexure 'F' is a true copy of the said order of the Collector, Gandhinagar."
5. Today, at the time of hearing of the petition, Mr.A.J. Patel, learned advocate for the petitioner made reference of government circular dated 17.3.2017 whereby the Government has declared certain procedure and guidelines for resolving the dispute related to bona fide purchaser and the claim for premium. He also submitted that the said decision / resolution will govern the pending cases as well and that, therefore, in light of the said circular dated 17.3.2017, the petitioner can approach the concerned authority with appropriate application which should be considered by the competent authority and appropriate order may be passed by the concerned competent authority after following Page 6 of 9 HC-NIC Page 6 of 9 Created On Mon Aug 14 03:00:10 IST 2017 C/SCA/15999/2005 ORDER procedure prescribed in the said circular. He, however, requested that liberty to file appropriate application, including the application to receive the petition, if the application is not decided / granted, may be granted.
6. In view of the said circular dated 17.3.2017, Mr.A.J. Patel, learned advocate for the petitioner submitted that the petitioner desires to approach the concerned authority with appropriate application in accordance with the procedure prescribed under circular dated 17.3.2017 and with request the authority to consider the case and pass appropriate order. He also submitted that for the said purpose, the petitioner would withdraw present petition at this stage with liberty to make appropriate application, including the application for revival of the petition, if the application which the petitioner may submit in light of the circular dated 17.3.2017 is not decided or Page 7 of 9 HC-NIC Page 7 of 9 Created On Mon Aug 14 03:00:10 IST 2017 C/SCA/15999/2005 ORDER granted by the authority.
7. The learned AGP Mr.Rakesh Patel submitted that there cannot be any objection against the petitioner's readiness and desire to approach the authority and that if the petitioner files appropriate application in light of said circular, it will be considered and decided in accordance with said circular.
8. In view of the said submission and statement by Mr.Patel, learned advocate for the petitioner, present petition is disposed of as withdrawn with the clarification that if the petitioner feels aggrieved by final decision of the authority in respect of his application submitted in pursuance of the circular dated 17.3.2017, then liberty reserved to the petitioner to take appropriate steps including the liberty to file appropriate proceedings or to request for revival of the petition.
With the aforesaid clarification and Page 8 of 9 HC-NIC Page 8 of 9 Created On Mon Aug 14 03:00:10 IST 2017 C/SCA/15999/2005 ORDER direction, the petition is disposed of as withdrawn. Rule is discharged. Adinterim relief, if any, stands vacated forthwith.
(K.M.THAKER, J.) Bharat Page 9 of 9 HC-NIC Page 9 of 9 Created On Mon Aug 14 03:00:10 IST 2017