Gujarat High Court
Kanubhai Virabhai Heirs Of Decvirabhai ... vs State Of Gujarat on 3 March, 2020
Author: N.V.Anjaria
Bench: N.V.Anjaria, Ashokkumar C. Joshi
C/LPA/924/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 924 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 6078 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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KANUBHAI VIRABHAI HEIRS OF DECVIRABHAI RAPABHAI BARIYA
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR MA KHARADI(1032) for the Appellant(s) No. 1
MR. SAHIL TRIVEDI, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 5
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CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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C/LPA/924/2017 JUDGMENT
Date : 03/03/2020
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) The present Letters Patent Appeal is preferred by the original petitioner against judgment and order dated 28th February, 2017, passed by learned Single Judge, whereby Special Civil Application No. 6078 of 1999 came to be dismissed.
2. In the said Special Civil Application, the appellant-petitioner had prayed to set aside order dated 5th December, 1998, passed by the Deputy Secretary (Appeals), Revenue Department- the Revisional Authority, allowing the Revision Application. The petitioner further prayed to restore order dated 9th December, 1993, of the Collector, Panchmahals.
2.1 It may be mentioned that the Revisional Authority in the order dated 5th December, 1998, held that Mutation Entry No. 169 was liable to be cancelled as it was rendered ineffective in view of Mutation Entry No. 275. As regards another Revenue Entry No. 384, it was held that the order of the Collector, Panchmahals, Godhra, aforementioned was bad in law. The Collector, Panchmahals, by his order dated 9th December, 1993, had in turn set aside the order of the Page 2 of 8 Downloaded on : Sun Feb 14 23:42:01 IST 2021 C/LPA/924/2017 JUDGMENT Deputy Collector, in so far as it had treated Entry No. 384 to be invalid and bad in law. The Collector came to the conclusion that Entry No. 384 was properly made.
3. In order to appreciate the controversy and the issue involved, the relevant facts may be outlined. The mutation entries brought under dispute related to land Survey No. 31 of village Nani Sanjeli of Limkheda Taluka. The original holder occupier of the land was one Valiben, widow of Fulji Kamji. Said Valiben had no male child. The land in question was subjected to family partition. Veerabhai Rupabhai, father of the petitioner happened to be the nephew of said Valiben. He became co-sharer and co-cultivator.
3.1 It appears that by virtue of Entry No. 169 mutated on 2.2.1960, the name of Veera Rupa was entered in the Revenue records in respect of land Survey No. 31/2. Land Survey No. 31 was formally divided into four parts, that is 31/1, 31/2, 31/3 and 31/4, which was reflected in mutation Entry No. 275 which was posted in the year 1967. In between, Entry No. 275 was mutated when the land came to be divided. Entry No. 384 came to be made on 28.12.1977 whereby the name of petitioner's father Veerabhai Rupabhai was entered. Certified copies of the aforesaid Page 3 of 8 Downloaded on : Sun Feb 14 23:42:01 IST 2021 C/LPA/924/2017 JUDGMENT mutation entries were produced in course of hearing to apprise the court of their contents. Shortly stated, Entry No. 169 and 384 came to be mutated in respect of the land in question in the year 1960 and 1977 respectively.
3.2 The private respondents Nos. 2 to 5approached the Deputy Collector by preferring R.T.S. Appeal No. 105 of 1991 challenging the Entry No. 169 and 384 and to get set aside those entries. The challenge raised was inter alia on the ground that notice was not given before mutation and that since it was tribal land, the permission of the competent authority was necessary. The Deputy Collector did not find anything wrong with Entry No. 169, but ordered cancellation of Entry No. 384 on the ground that it was pursuant to a transaction, for which permission of the competent authority was not taken.
3.3 Against the aforesaid order of the Deputy Collector, Veerabhai preferred before the Collector Appeal No. 47 of 1993. The Collector found that order of the Deputy Collector in respect of mentioning of Entry No. 169 was proper and legal requiring no interference, however, as regards Entry 384, the Deputy Collector's order was set aside whereby Entry No. 384 was Page 4 of 8 Downloaded on : Sun Feb 14 23:42:01 IST 2021 C/LPA/924/2017 JUDGMENT cancelled. The Collector thus restored the validity of Entry No. 384.
3.4 The private respondents herein filed Revision Application before the Secretary (Appeals) which culminated into the order which was impugned in the Special Civil Application. According to the Revisional Authority what was to be taken into account was Entry No. 275 and in that view, the Entry No. 169 lost its effectiveness. About Entry No. 384, the Revisional Authority found it to be in breach of section 73AA of the Bombay Land Revenue Code. The Revisional Authority declared Entry No. 169 and 384 both to be cancelled.
4. Heard learned advocate Mr. M. A. Kharadi for the appellant-the original petitioner and learned Assistant Government Pleader Mr. Sahil Trivedi for the respondent authorities.
5. As could be gathered from the facts narrated hereinabove, the dispute related to the Revenue Entries Nos. 169 and 384 in respect of land survey No. 31 situated at village Nani Sanjeli. The first Entry No. 169 was mutated in the year 1960 and the another Entry No. 384 also in name of Veerabhai, came to be mutated in the year 1977. The private respondents called in Page 5 of 8 Downloaded on : Sun Feb 14 23:42:01 IST 2021 C/LPA/924/2017 JUDGMENT question the said entries before the Deputy Collector in the year 1991 by preferring the Appeal. In other words, Entry No. 169 was mutated before 31 years when it was challenged. Wereas there was delay of 14 years in challenging the entry no. 384. Not only the delay aspect writs large, it was shown that any application for condoning the delay of 14 years was not filed before the Deputy Collector. Without formal application for condonation of delay, the Deputy Collector was not justified in law in entertaining the appeal. Even otherwise, without any plausible explanation for passage period of 14 years, the Deputy Collector could not have entertained the Appeal on the ground of delay alone. The petitioner herein was liable to succeed.
5.1 When the name of Veerabhai came to be mutated pursuant to Entry No. 384, it was in light his status as co-sharer in the land. The said named Valiben Fulji had no male child. Her nephew was cultivating the land. Therefore, name of Veerabhai-the nephew was entered in the Revenue record as a cultivator. The copies of the relevant entries were produced by learned advocate for the petitioner for perusal of the court. The finding recorded by the revisional authority and furthered by the learned single Page 6 of 8 Downloaded on : Sun Feb 14 23:42:01 IST 2021 C/LPA/924/2017 JUDGMENT judge that the name of the petitioner could not have been recorded as a cultivator, was erroneous. Learned single Judge further misdirected itself in considering the fact that Entry No. 925 which was in respect of mortgage transaction was recorded, which entry indeed have no bearing on the controversy but the reasoning of learned Single Judge was guided by the said aspect.
5.2 The moot aspect disregarded by the learned Single Judge was in respect of the finding recorded by the Revisional Authority about breach of section 73AA of the Bombay Land Revenue Code. Entry No. 384 was held bad in law and invalid on the count that the permission of competent authority was required to be taken in view of the currency of provision of section 73AA of the Code. Now the Entry in question, that is entry no. 384 was posted on 28.12.1977 , whereas section 73AA was introduced in the statute book 1.4.1981 only. In other words, when Entry No. 384 was mutated, there was no provision in existence such as 73AA, which may require prior permission of the competent authority. The ground adopted by the Revisional Authority to set at naught the Entry No. 384, thus falls flat.
6. Learned Single Judge has disregarded the Page 7 of 8 Downloaded on : Sun Feb 14 23:42:01 IST 2021 C/LPA/924/2017 JUDGMENT above material aspects to dismiss the petition and to confirm the order of Revisional Authority, thereby committed an error of law requiring interference in the Letters Patent Appeal.
6.1 Resultantly judgment and order dated 28.2.2017 of learned singled judge dismissing Special Civil Application No. 6078 of 1999, is hereby set aside. The order dated 5.12.1998 passed by the Revisional Authority-the respondent no.1 herein, impugned in the petition, is also set aside. Order dated 9th December, 1993 of Collector, Panchamahls, Godhra in RTS appeal No. 47 of 1993 stands restored in respect of the Revenue Entries Nos. 169 and 384 concerning the land in question.
7. The present Letters Patent Appeal accordingly stands allowed.
(N.V.ANJARIA, J) (DR. ASHOKKUMAR C. JOSHI,J) C.M. JOSHI Page 8 of 8 Downloaded on : Sun Feb 14 23:42:01 IST 2021