Gujarat High Court
Bhuprendra Ramanlal Patel vs State Of Gujarat on 26 December, 2019
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/20938/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20938 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 20947 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 21108 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 21109 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 21411 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 21413 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 22220 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 22221 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 22222 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 22223 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 22224 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 22279 of 2019
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BHUPRENDRA RAMANLAL PATEL
Versus
STATE OF GUJARAT
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APPEARANCE IN SPECIAL CIVIL APPLICATION NOS.20938, 20947,
21108, 21109, 21411, 21413 OF 2019:
MR DEVEN PARIKH WITH MS SHUBHA B TRIPATHI(5597) for the
Petitioner(s) No. 1,2
for the Respondent(s) No. 10,11,13,14,15,2,3,4,5,6,7,8,9
MR BHARAT VYAS AGP(99) for the Respondent(s) No. 1
MR. AUM M KOTWAL(7320) for the Respondent(s) No. 12
APPEARANCE IN SPECIAL CIVIL APPLICATION NOS.22220, 22221,
22222, 22224 AND 22279 OF 2019:
MR DEVEN PARIKH WITH MS SHUBHA B TRIPATHI(5597) for the
Petitioner(s) No. 1,2
for the Respondent(s) No. 10,11,13,14,15,2,3,4,5,6,7,8,9
MS DIVYANGNA JHALA, AGP(99) for the Respondent(s) No. 1
MR. AUM M KOTWAL(7320) for the Respondent(s) No. 12
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C/SCA/20938/2019 ORDER
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 26/12/2019
COMMON ORAL ORDER
1. The issue involved in all these petitions is similar and therefore, with the
consent of learned advocates appearing for the parties, all these petitions are disposed off by this common order. However, for the sake of convenience, the facts of Special Civil Application No.20938 of 2019 are considered.
2. Heard learned senior advocate Mr.Deven Parikh assisted by learned advocate Ms.Shubha Tripathi for the petitioners, learned Assistant Government Pleader Mr.Bharat Vyas for respondent no.1, learned advocate Mr.Viral Shah assisted by learned advocate Mr.Aum Kotwal for respondent no.12.
3. In the petition being Special Civil Application No.20938 of 2019, which is filed under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:
"25(A) Your Lordships may be pleased to admit and allow the present petition;Page 2 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019 C/SCA/20938/2019 ORDER
(B) Your Lordships may be pleased to issue a writ of Certiorari or a writ in nature of Certiorari or any other appropriate writ/s, order/s and/or direction/2 quashing and setting aside the impugned order passed by the respondent No.1 dated 7.09.2019 in Revision Application No.26 of 2019 AND also order passed by the Respondents no.2 dated 8.5.2019 in Revision Application No.231 of 2018;
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased stay the execution, operation and implementation of the impugned order passed by the respondent no.2-Revision Application No.231/18 dated 8.5.2019 and restore the order passed by the Mamlatdar, Gandhinagar in Disputed Case No.25 of 2016 dated 07/09/2019; (D) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the execution, operation and implementation of the status quo of the land in question the survey no.89, block no.67, village Nabhoi, Taluka and District Gandhinagar;
(E) Such other and further relief/s as may be deem just and proper in the facts and circumstances of the case may please be granted in favour of the petitioner in the interest of justice."
4. Learned senior advocate appearing for the petitioners submitted that the petitioners are the owners and occupier of the land bearing survey nos.85, 86/1, 86/2 and 87 of village Nabhoi, Taluka district Gandhinagar. The total land is admeasuring 35,019 sq.yards. It is further submitted that originally respondent no.13 and his family members are the owners of the land bearing survey nos.85, 88 and 89 and Page 3 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019 C/SCA/20938/2019 ORDER they floated a scheme on the aforesaid land namely Jain Vatika Bunglows' Owners Association in the year 1996. The cooperative society was registered bearing registration no.7377. It is submitted that the respondent no.13 allotted plot nos.59,60, 61 and 62 to the family members of the petitioners and plot no.59 of has been allotted to the petitioners.
4.1 Learned senior advocate thereafter submitted that the family members of the petitioners sold the land by registered sale deed to Kantaben Parshottambhai Patel and others on 7.10.1997. Learned senior advocate referred to the averments made in the petition and thereafter contended that civil proceedings are pending before the concerned civil court with regard to the subject land. It is further submitted that on 16.10.2006, vide different registered sale deeds, one Maheshbhai Mehta and six others including Mr.Viswabandhu Dahyabhai Patel had purchased the land in question. Similarly, on 11.7.2007, some of the private respondents purchased the parcel of the land in question by registered sale deed.
4.2 Learned senior advocate thereafter would submit that though the civil Court has passed interim order by which the direction is given to the revenue authority not to mutate the entries Page 4 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019 C/SCA/20938/2019 ORDER in the revenue record with regard to the subject land, the concerned revenue authority has mutated the entry with regard to the registered sale deed executed in favour of some of the private respondents. The said entry was cancelled by the Mamlatdar vide order dated 12.1.2017. Therefore, the private respondents filed appeal before the Deputy Collector which was rejected vide order dated 6.10.2018. The private respondents, therefore, filed revision application before the Collector. The Collector allowed the said application filed by the private respondents vide order dated 8.5.2019. The petitioners, therefore, preferred revision application no.20 of 2019 before SSRD. However, the respondent-SSRD, by the impugned order dated 7.9.2019, rejected the revision application filed by the petitioners. The petitioners have, therefore, filed the present petition.
4.3 Learned senior advocate Mr.Parikh assailed the impugned order passed by the SSRD mainly on the ground that the petitioners are having agreement to sell executed by the concerned owners of the land in question in favour of the petitioners. Civil proceedings are still pending before the competent civil Court with regard to the subject land and in one of the cases, the concerned civil court has passed an Page 5 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019 C/SCA/20938/2019 ORDER interim order by which the revenue authorities restrained from entering into any revenue entry in the revenue record. Inspite of that, the impugned order has been passed by respondent SSRD in favour of the private respondents. It is also contended that different revision applications were filed before the SSRD by the present petitioners and other similarly situated persons and so far as the revision application nos.9 to 25 of 2019 were concerned, this Court has disposed off the petitions filed by the concerned petitioners directing the SSRD to decide the applications filed by the said petitioners/applicants before deciding the main revision applications. It is submitted that the SSRD decided the other revision applications on merits though all the revision applications were required to be heard together and further when the applications for joining party filed by the concerned petitioners of the said petitions were listed for hearing before SSRD, SSRD has observed that so far as the revision application no.26 of 2019 and allied matters are concerned, the said revision applications are already decided and therefore the said decision would be applicable in revision application nos.9 to 25 of 2019. Learned senior advocate, therefore, urged that the impugned order passed by the respondent-SSRD be quashed and set aside.
Page 6 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019 C/SCA/20938/2019 ORDER5. On the other hand, learned advocate Mr.Shah appearing for the respondent no.12 vehemently opposed this petition and referred to the averments made in the affidavit-in-reply filed on behalf of respondent no.12. It is submitted that the dispute in the present petition is with regard to the mutation entry nos.1243 and 1244 pertaining to survey/block no.85 of village Nabhoi Taluka and district Gandhinagar. It is submitted that the aforesaid entries were mutated in the revenue record on the basis of the registered sale deed executed in favour of the respondent no.12. It is submitted that on 16.10.2006, Mr.Maheshbhai Mehta and six others purchased the parcels of disputed land by registered sale deed and thereafter Mr.Sejal Mehta and two others had purchased the parcels of disputed land from Viswabandhu Dahyabhai Patel dated 11.7.2007 by registered sale deed. Special Civil Suit No.323 of 2008 is filed by respondent no.12 with respect to the land in question. 46 so called members of Jain Vatika Bunglows had also filed civil suit against the private respondents herein wherein they have prayed for cancellation of registered sale deed dated 16.10.2006 as well as 11.7.2007 executed in favour of the private respondents. It is submitted that interim injunction is granted by the competent civil Page 7 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019 C/SCA/20938/2019 ORDER court in favour of the private respondents on 15.5.2009. At this stage, it is submitted that the order granting interim injunction passed by the concerned civil Court on 15.5.2009 was challenged by filing Appeal From Order No.190 of 2009. This Court dismissed the said appeal vide order dated 16.9.2010. The order passed by this Court was challenged by filing SLP before the Hon'ble Supreme Court and the Hon'ble Supreme Court vide order dated 16.11.2010 dismissed the SLP. Learned advocate Mr.Shah has referred to the averments made in the affidavit-in-reply and pointed out from the record that various litigations were filed before this Court as well as before the Hon'ble Supreme Court with regard to the parcels of disputed land and civil litigations have culminated in favour of respondent no.12 barring the suit for specific performance filed by the petitioners.
5.1 It is also submitted that the petitioners also instituted criminal proceedings against the private respondents by filing FIR being C.R.No.I-29 of 2016. However, when the Special Criminal Application No.8790 of 2016 is filed by the private respondents before this Court, the further proceedings of the said FIR has been initially stayed and recently on 26.7.2019, the said FIR is quashed and set aside Page 8 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019 C/SCA/20938/2019 ORDER by this Court.
5.2 Learned advocate Mr.Shah thereafter contended that when the mutation entry in question were posted on the basis of the registered sale deed, no error is committed by the respondents authorities and the rights of the parties including the petitioners can be decided by the civil court in the pending civil proceedings before the competent civil court. However, the revenue authority has no powers to decide the rights of the parties. Learned advocate Mr.Shah has placed reliance upon the decision rendered by this Court in the case of Gandabhai Dalpatbhai Patel V/s State of Gujarat and Ors., reported in 2005(2) GLR 1370.
6. Learned Assistant Government Pleader Mr.Vyas has also supported the contentions canvassed by learned advocate Mr.Viral Shah appearing for the private respondents. Learned Assistant Government Pleader has also referred to the impugned order passed by SSRD and thereafter contended that SSRD has not committed any error while passing the impugned order and therefore this Court may not interfere with the same in this petition.
7. Having heard the learned advocates Page 9 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019 C/SCA/20938/2019 ORDER appearing for the parties and having gone through the material placed on record, it would emerge that the concerned private respondents have purchased the land in question by registered sale deeds which were executed in the year 2006 and 2007 respectively. On the basis of the registered sale deeds, the entry was mutated in the revenue record. It is mainly contended on behalf of the petitioners that the petitioners are having right, title and interest in the land in question on the basis of the agreement to sale executed in their favour for which civil litigation is pending before the competent civil Court. However, it is well settled that the revenue authority cannot decide the right, title and interest of the concerned party in the revenue proceedings. It is for the competent civil court to determine the right, title and interest of the parties. In the present case, it is not in dispute that the disputed mutation entries were mutated in the revenue records on the basis of the registered sale deed executed in favour of the concerned private respondents.
8. At this stage, the decision rendered by this Court in the case of Gandabhai Dalpatbhai Patel (supra) is required to be kept in view, wherein, this Court has observed in paragraphs 8,9 and 10 as under:
Page 10 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019 C/SCA/20938/2019 ORDER"8. Heard the learned advocates appearing on behalf of the parties. So far as the contention on behalf of the petitioner and the propoosition of law laid down in the judgment reported in 1992 Bombay Page 149 is concerned, there is no dispute with regard to said proposition of law. The only question is whether such an enquiry is required to be conducted by Mamlatdar in an RTS proceeding or not. The questions in relation to genuineness of power of attorney and/or authority, and whether the power of attorney holder can execute the sale deed or not, are the questions which are required to be considered by a Civil Court and not in an RTS proceeding while mutating necessary entry in the record of rights which is only made for fiscal purpose and which does not confer any right, title or interest in favour of a person in whose favour entry is made. As held by the Hon'ble Supreme Court in the case of Swarni (SMT) Vs. Indrakumar (SMT) and others, reported in 1996(6) SCC 433 and in the case of Sankalchand Jayantilal Patel (Supra) , record of rights and mutation entries are only one of the modes of proof of enjoyment of the property and such entries do not create any right, title or interest in property. It is required to be noted that the case before the Hon'ble Supreme Court in the case of Sankalchand Patel (supra) was also relating to the provisons of Bombay Land Revenue Code and the Apex Court was dealing with Section 135 of the Code. Even it is the consistent practice and view of this Court as held in catena of judgements that the entries in the record of rights do not confer any right, title or interest in the property and that they are only for the fiscal purposes for collection and payment of revenue.Page 11 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019 C/SCA/20938/2019 ORDER
9. It is the consistent view taken by this Court in catena of judgments that the revenue authorities while dealing with RTS proceedings had no jurisdiction and/or authority to decide the question of title and if there is any dispute with regard to title the parties are to be relegated to the Civil Court. As held by the Hon'ble Supreme Court in the case of STate of GUjarat VS. Patel Raghav Natha - AIR 1969 SC Page 1297 and judgment of this Court in the case of Ratilal Chunilal Solanki & Ors. Vs. Shantilal Chunilal Solanki - 1996(2) GLR 525 and Siddharth B. Shah vs. State of Gujarat, reported in 1999(3) GLR Page 2527, the revenue authorities cannot decide the disputed question of title to the property and they have to merely go by the documents produced before them. Even this Court has held in the case of Nathabhai Meraman Darji (Supra) that when a document of registered sale deed is produced before the authority, the revenue authorities are bound to give effect to the same and are not required to decide the question of title.
10. Even this Court in a recent judgment in the case of L.R.s of Popat Khima Ramani and Ors. vs. Collector, Rajkot and Ors., reported in 2003(1) GLH 30, has considered the scope of revenue authorities while deciding the question with regard to mutation entry and the powers under SEction 135 and Rule 108, has held that revenue authorities are not to decide the question about title and the revenue authorities are to make necessary entries on the basis of decision of Civil Court. It is further held in the said judgment that the revenue authorities are invested with limited powers under Section 135 and they cannot assume to themselves certain powers conferred on them by law and they cannot assume jurisdiction of Civil Page 12 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019 C/SCA/20938/2019 ORDER Court. The revenue authorities cannot decide validity of transaction on touchstone of statutory provision occurring in some enactment and that they cannot decide disputed question of title. In fact, this Court has gone to the extent that when a dispute as to the title arises the parties have to go to the competent Civil Court. In the present case, in fact the Civil Suit is pending between the parties and the Civil Court is to decide all these questions which are raised by the petitioner in the present Special Civiil Application with regard to validity of the power of attorney, the genuineness of sale deed, and the authority of power of attorney holder on the basis of the power of attorney. Considering the fact that the suit is pending between the parties and that the petitioner has challenged the legality and validity of the sale deed before the Civil Court and that there is an injunction in the said Suit, in fact the Secretary (Appeals) has tried to strike the balance and has tried to protect the interests of all the parties by directing that the factum of injunction granted by the Civil Court should also be noted in the entry and that the entry in favour of respondent No.5 would be subject to the ultimate outcome of the suit pending between the parties in which the legality and validity of the sale deed is challenged. It cannot be said that there is any illegality committed by the Secretary (Appeals). On the contrary, the judgment and order passed by the revisional authority, i.e. Secretary (Appeals) is in consonance with the provisions of Section 135 of the Bombay Land Revenue Code and 108 of the Bombay Land Revenue Rules and the view taken by the Hon'ble Supreme Court as well as this Court with regard to the powers of revenue authorities while dealing with the question of mutation entries. The revenue authorities are not required to consider with Page 13 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019 C/SCA/20938/2019 ORDER regard to the genuineness of the sale deed, the powers and authority of the power of attorney holder under the power of attorney and the question with regard to the title.
What is required to be done by the Sub- Registrar at the time when the sale deed was executed cannot be permitted to be done by the Mamlatdar and/or revenue authorities while deciding the question with regard to mutation entry, more particularly the entry in the record of rights is only having a presumptive value and only for a fiscal purpose of recovering and payment of revenue and it does not confer any right, title or interest in favour of any party in the property."
9. From the aforesaid decision, it can be said the revenue authorities are invested with limited powers under Section 135 of the Gujarat Land Revenue Code and they cannot assume to themselves cetain powers conferred on them by law and they cannot assume jurisdiction of the civil court. The revenue authorities cannot decide validity of transaction on touchstone of statutory provision occurring in some enactment and that they cannot decide the disputed question of title. It is further held that the revenue authorities are not required to consider with regard to the genuineness of the sale deed, the powers and authority of the Power of Attorney- holder and the question with regard to the title.
10. It is also contended by learned senior Page 14 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019 C/SCA/20938/2019 ORDER counsel appearing for the petitioners that this Court has disposed off Special Civil Application No.14731 of 2019 and allied matters vide order dated 6.9.2019, whereby this Court has directed SSRD to decide the application filed by the said petitioners for joining them as party respondents in revision application nos.9 to 25 of 2019 within the stipulated time limit and till the said applications are decided, the direction was given to the SSRD not to pass any final order. It is required to be noted that the aforesaid order was passed at the stage of admission hearing of the petition without issuance of notice even to the respondents and this Court had not examined the merits of the case. Further, after considering the application filed by the said petitioners for joining them as party respondents, SSRD has passed the orders and therefore it cannot be said that respondent SSRD has committed any error.
11. Even otherwise, as observed hereinabove, in the impugned order passed by the SSRD, it has been observed that the mutation entry in question came to be posted on the basis of the registered sale deed executed in favour of the private respondents herein and therefore when the dispute before SSRD was with regard to the muation entry, on the basis of the registered sale deed, when Page 15 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019 C/SCA/20938/2019 ORDER the impugned order is passed by SSRD, this Court is of the view that no error is committed by the SSRD while passing the impugned order which requires interference in the present petition. It is needless to say that the disputed entries are subject to the final outcome of the civil proceedings which are pending before the competent civil court.
12. In view of the aforesaid facts and circumstances of the present case, all these petitions are required to be dismissed and are accordingly dismissed.
(VIPUL M. PANCHOLI, J) SRILATHA Page 16 of 16 Downloaded on : Fri Dec 27 21:38:35 IST 2019