Urmilbhai Gandabhai Patel vs State Of Gujarat & 4 on 2 February, 2017

[Cites 5, Cited by 2]

Gujarat High Court

Urmilbhai Gandabhai Patel vs State Of Gujarat & 4 on 2 February, 2017

Bench: Abhilasha Kumari

                   C/SCA/11694/2016                                             JUDGMENT




                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        SPECIAL CIVIL APPLICATION NO. 11694 of 2016



         FOR APPROVAL AND SIGNATURE:


         HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
         ==========================================================
         1   Whether Reporters of Local Papers may be allowed       No
             to see the judgment ?

         2     To be referred to the Reporter or not ?                                               No

         3     Whether their Lordships wish to see the fair copy of                                  No
               the judgment ?

         4     Whether this case involves a substantial question of                                  No
               law as to the interpretation of the Constitution of
               India or any order made thereunder ?

         ==========================================================
                           URMILBHAI GANDABHAI PATEL....Petitioner(s)
                                          Versus
                            STATE OF GUJARAT & 4....Respondent(s)
         ==========================================================
         Appearance:
         MR ANSHIN H DESAI, SENIOR ADVOCATE WITH MR PARTHIV B SHAH, ADVOCATE for
         the Petitioner
         MR KM ANTANI, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1 to 4
         NOTICE ISSUED BY PUBILCATION for the Respondent(s) No. 5
         ==========================================================

             CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI

                                       Date : 02/02/2017


                                       ORAL JUDGMENT

1. This petition under Article 226 of the Constitution of India has been preferred with Page 1 of 17 HC-NIC Page 1 of 17 Created On Sat Aug 12 15:11:26 IST 2017 C/SCA/11694/2016 JUDGMENT the following prayers:

"(A) Your Lordships be pleased to issue appropriate writ, order or direction, quashing and setting aside the impugned order dated 11.05.2016 passed by respondent No.1 in stay application filed in Revision Application No.MVV/HKP/AMD/134/2015, in the interest of justice;

(B) Your Lordships be pleased to stay the impugned order dated 11.05.2016 passed by respondent No.1 in stay application filed in Revision Application No.MVV/HKP/AMD/134/2015, and direct the respondent authorities to mutate the name of present petitioner in the revenue records, pending the admission, hearing and final disposal of this petition;

(C) Your Lordships be pleased to grant such other and further reliefs as deemed fit in the interest of justice;"

2. The brief background in which the petition has been filed is to the following effect:

2.1 Land bearing Block No.258/B situated at village Ambli, District Ahmedabad, was originally sold by the petitioner to one Page 2 of 17 HC-NIC Page 2 of 17 Created On Sat Aug 12 15:11:26 IST 2017 C/SCA/11694/2016 JUDGMENT Chandrakantbhai who, in turn, sold it to the present respondent No.5.

2.2 It appears that an Agreement to Sell and a Power of Attorney were initially executed by respondent No.5 in favour of the petitioner.

Thereafter, the petitioner purchased the land from respondent No.5 by a registered Sale Deed dated 05.04.2010. A Confirmation Deed also came to be entered into between petitioner and respondent No.5 on 10.04.2010. Accordingly, Mutation Entry No.4277 was made in the revenue record on 03.05.2010.

2.3 Respondent No.5 instituted a civil suit, in which an order of statusquo was issued. The petitioner filed an Appeal from Order and the matter was remanded to the Civil Court. By an order dated 03.05.2011, the Civil Court directed the statusquo be maintained by the parties with respect to the property in question, till the final decision of the suit.

2.4 After mutation of entry No.4277, notices under Section 135D of the Gujarat Land Revenue Page 3 of 17 HC-NIC Page 3 of 17 Created On Sat Aug 12 15:11:26 IST 2017 C/SCA/11694/2016 JUDGMENT Code, 1879 ("the Code") were issued. Respondent No.5 raised an objection. The Mamlatdar, by an order dated 07.01.2011, quashed the mutation entry made in respect of the sale transaction in favour of the petitioner. Aggrieved by the said order, the petitioner approached the Deputy Collector, who dismissed the appeal of the petitioner on 30.03.2013. The petitioner then approached the Collector, who, by an order dated 03.02.2015, rejected the revision application filed by the petitioner.

2.5 Under the circumstances, the petitioner has now approached the Special Secretary (Appeals), Revenue Department ("SSRD"), by filing a revision application, challenging the abovementioned order of the Collector. The said revision application is pending adjudication. Along with the revision application, the petitioner had filed an application for the grant of interim stay against the implementation and execution of the orders of the revenue authorities, cancelling mutation entry No.4277. It is the case of the petitioner that the SSRD, Page 4 of 17 HC-NIC Page 4 of 17 Created On Sat Aug 12 15:11:26 IST 2017 C/SCA/11694/2016 JUDGMENT by the impugned order, has granted an order of statusquo that has already been issued by the Civil Court in respect of the property in question. However, the effect of the order of statusquo granted by the SSRD would be that the cancellation of the revenue entry in favour of the petitioner would continue. Aggrieved by this state of affairs, the petitioner has approached this Court by way of the present petition.

3. Mr.Anshin H. Desai, learned Senior Advocate, has submitted that looking to the nature of the prayers made in the petition and as the main revision application is pending, the Court may hear and decide the petition finally.

4. Under the facts and circumstances and with the consent of the learned counsel for the respective parties, the Court proposes to hear and decide the petition finally.

5. Notice was issued in the petition on 11.08.2016.

It appears that respondent No.5 remained unserved even after four subsequent dates of hearing. As none appeared for respondent No.5, Page 5 of 17 HC-NIC Page 5 of 17 Created On Sat Aug 12 15:11:26 IST 2017 C/SCA/11694/2016 JUDGMENT the petitioner filed Civil Application No.12629 of 2016, with a prayer to permit the publication of the notice issued in the petition upon respondent No.5, in the local daily newspaper. This application was allowed by an order dated 15.12.2016, passed by the Court. On 17.01.2017, the notice was published in the Gujarati daily newspaper "Gujarat Samachar". Subsequently, on 19.01.2017, this Court noted the endorsement indicating that respondent No.5 had been served by publication but none had appeared on her behalf.

6. When the petition is taken up for hearing today, the situation is the same as none appears on behalf of respondent No.5 in spite of publication of the notice. It is stated by learned Senior Counsel for the petitioner that respondent No.5 did not appear before the Collector and the SSRD, as well. It appears that in the proceedings before the Collector as well, the notice was published in the Gujarati daily newspaper "Sandesh", in respect of respondent No.5.



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               C/SCA/11694/2016                                         JUDGMENT

7. Hence, issue Rule. Mr.K.M.Antani, learned Assistant Government Pleader, waives service of notice of Rule for respondents Nos.1 to 4. As respondent No.5 has chosen not to appear before this Court, there is no requirement of issuing notice of Rule to the said respondent.

8. It is submitted by Mr.Anshin H. Desai, learned Senior Counsel for the petitioner, that respondent No.5 has executed a registered Sale Deed in favour of the petitioner. The second proviso to Section 135C of the Code provides that any person acquiring the right by virtue of a registered document shall be exempted from the obligation to report to the designated officer. Hence, it was obligatory on the part of the revenue authorities to mutate the entry in respect of the registered Sale Deed in favour of the petitioner. There is no requirement, as per the law, on the part of the petitioner to approach the authorities in this regard. It is submitted that in the present case though the needful was done and mutation entry No.4277 was mutated in the revenue record in respect of the Page 7 of 17 HC-NIC Page 7 of 17 Created On Sat Aug 12 15:11:26 IST 2017 C/SCA/11694/2016 JUDGMENT registered sale transaction of the petitioner, however, this entry is not being certified on an objection raised by respondent No.5, the seller. It is further submitted that it is a settled principle of law that the seller has no locus standi to challenge the sale transaction after pocketing the consideration.

9. In support of the above submissions, reliance has been placed by learned Senior Counsel upon an interim order dated 15.12.2016 passed by this Court in the case of Bhupendra Chaganbhai Gandhi & Ors. v. State of Gujarat & Ors. Special Civil Application No.12632 of 2016 with Special Civil Application No.17244 of 2016.

10. Learned Senior Counsel submits that until and unless the registered Sale Deed is not quashed or set aside, the entry in respect thereof ought to remain in the revenue record as per the law, though it may be made subject to the final decision of the civil suit.

11. In support of the above submissions, learned Page 8 of 17 HC-NIC Page 8 of 17 Created On Sat Aug 12 15:11:26 IST 2017 C/SCA/11694/2016 JUDGMENT Senior Counsel has relied upon a judgment of this Court in the case of Gandabhai Dalpatbhai Patel v. State of Gujarat & Ors., reported in 2005(2) GLR 1370.

12. It is further submitted on behalf of the petitioner that the Civil Court has issued an order of statusquo in respect of the property in question which order is already reflected in the revenue record by recording an entry. However, the scope of the order of the Civil Court was regarding the property in question, whereas the order of statusquo issued by the SSRD would be with regard to the entry of the Sale Deed in favour of the petitioner, which has not been certified.

13. On the basis of the above submissions, it is prayed that interim relief, as prayed for, may be granted, subject to the final decision in the Civil Suit.

14. Mr.K.M.Antani, learned Assistant Government Pleader, has opposed the petition by submitting that the petition is directed against an interim Page 9 of 17 HC-NIC Page 9 of 17 Created On Sat Aug 12 15:11:26 IST 2017 C/SCA/11694/2016 JUDGMENT order. That the SSRD has stated in the impugned order that the Collector has directed the mutation of the entry of the litigation in the revenue record, therefore, no prejudice would be caused to the petitioner.

15. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.

16. At the outset, it may be mentioned that the Court does not intend to enter into the merits of the dispute that is pending adjudication before the SSRD. Therefore, it confines itself only to the grant, or otherwise, of the interim relief that was prayed for by the petitioner before the SSRD.

17. It has been submitted on behalf of the petitioner that the petitioner has no objection if the order of statusquo issued by the Civil Court is reflected in the revenue record. However, it may be kept in mind that the order of statusquo is an interlocutory order and, Page 10 of 17 HC-NIC Page 10 of 17 Created On Sat Aug 12 15:11:26 IST 2017 C/SCA/11694/2016 JUDGMENT ultimately, it would be the final decision in the Civil Suit that would govern the rights of parties.

18. Insofar as the present petition is concerned, it is only regarding the mutation of the entry in respect of a Sale Deed at the interim stage. At present, the Sale Deed has not been quashed or set aside and is still intact. As per the second proviso to Section 135C of the Code, it is obligatory on the part of the revenue authorities to make an entry with regard to a registered Sale Deed, though the said entry may be subject to the final decision of a pending Civil Suit. To this extent, the SSRD does not appear to be correct in refusing the interim relief prayed for by the petitioner.

19. In Bhupendra Chaganbhai Gandhi & Ors. v. State of Gujarat & Ors. (supra), relied upon by learned Senior Counsel in support of the above proposition, this Court has held as below:

"6. Ms.Kruti M. Shah, learned advocate for the petitioners in the second petition Page 11 of 17 HC-NIC Page 11 of 17 Created On Sat Aug 12 15:11:26 IST 2017 C/SCA/11694/2016 JUDGMENT has, apart from adopting the submissions advanced by Mr.Asim J. Pandya, learned advocate for the petitioners in the first petition, drawn the attention of the Court to the second proviso of Section135(C) which provides that any person acquiring a right by virtue of a registered document, shall be exempted from the obligation to report to the designated officer. It is submitted that the petitioners are holders of registered Sale Deeds, therefore, it was obligatory on the part of the revenue authorities to make an entry in respect of the said Sale Deeds. There is no requirement on the part of the petitioners to approach the revenue authorities in this regard.

6.1 In support of her submissions, reliance has been placed upon the judgment of this Court in Nathubhai Meraman Darji Vs. Special Secretary (Appeals) and others, reported in 1996 (3) GCD 691 (Guj), more particularly paragraph8 thereof, which is reproduced as below:

8. As pointed out hereinabove, respondent No.3 has set aside the entry at AnnexureA to this petition only on the ground that no notice under Sec.l35D of the Code was served to the deceased before effecting mutation in the revenue record on the basis of the registered sale transaction. In this connection, a reference deserves to be Page 12 of 17 HC-NIC Page 12 of 17 Created On Sat Aug 12 15:11:26 IST 2017 C/SCA/11694/2016 JUDGMENT made to Sec.l35C of the Code. It has been provided therein that any person acquiring interest interalia by purchase of land has to report the sale transaction to the Village Accountant obviously for the purpose of effecting the necessary mutation in the revenue records. The Second Proviso thereto has exempted inter alia the purchaser from making such report to the Village Accountant if such transaction is represented by a registered document.

It is an admitted position on record that the petitioner purchased the disputed land from the deceased by means of a registered sale deed. He was therefore not required to report that transaction to the Village Accountant. The Village Accountant was required to take note of that transaction on account of its registration according to the Indian Registration Act, 1908. In that case, the question of following the procedure of Sec.135D of the Code would not arise when a transaction is represented by a registered document, its suo motu cognizance is required to be taken by the Village Accountant for the purpose of its mutation in the concerned revenue record. If that transaction is disputed, the disputing party will have to approach the competent civil Court for annulling or avoiding such transaction as provided in Sec.31 of the Specific Relief Act, 1963. It would not be open to him to dispute the validity of the transaction in what is popularly known as the RTS proceedings. 1 think respondent No.3 was not justified in setting aside the entry at AnnexureA to this petition on the ground that the required notice under Sec.135D of the Code was not served to the deceased. I am of the opinion that the deceased was not required to be served with the notice Page 13 of 17 HC-NIC Page 13 of 17 Created On Sat Aug 12 15:11:26 IST 2017 C/SCA/11694/2016 JUDGMENT under the said statutory provision.

7. Having heard learned counsel for the respective parties and upon consideration of the submissions advanced at the Bar and the material on record, this Court is of the view that learned counsel for the petitioners have made out a case for the admission of the petitions and grant of interim relief."

20. It has been submitted by learned Senior Counsel for the petitioner that until and unless the registered Sale Deed is not quashed or set aside, the entry in respect thereof ought to be certified as per the law, though it may be subject to the final decision of the civil suit. In this regard, reliance is placed upon a judgment of this Court in Gandabhai Dalpatbhai Patel v. State of Gujarat & Ors. (supra), wherein it is observed thus:

"10. .... 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 Page 14 of 17 HC-NIC Page 14 of 17 Created On Sat Aug 12 15:11:26 IST 2017 C/SCA/11694/2016 JUDGMENT 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 Civil Application with regard to validity of the Power of Attorney, the genuineness of saledeed, and the authority of Power of Attorneyholder on the basis of the Power of Attorney...."

21. The second aspect is that the order of status quo passed by the SSRD would bar the chances of the certification of the entry of the petitioner for all times to come, or at least till the pendency of the dispute before the Civil Court. There is a difference between the proceedings before the Civil Court and that before the SSRD, the thin distinction regarding which appears to have been overlooked by the SSRD while passing the impugned order. While the Civil Court is competent to adjudicate upon the title of the parties, the revenue authorities can only make mutation entries in the record which, as per the settled legal position, does not confer title Page 15 of 17 HC-NIC Page 15 of 17 Created On Sat Aug 12 15:11:26 IST 2017 C/SCA/11694/2016 JUDGMENT but are made only for fiscal purposes. A registered Sale Deed, which still stands, therefore has to be reflected in the record by a corresponding entry, though an endorsement may be made that it is subject to the final decision in the Civil Suit.

22. For the reasons stated hereinabove and the principles of law enunciated by this Court in the abovementioned judgments, the following order is passed.

(i) The order dated 11.05.2016, passed by respondent No.1 in stay application filed in Revision Application No.MVV/HKP/AMD/134/2015, is quashed and set aside.

(ii) It is directed that during the pendency of the proceedings before respondent No.1, the revenue authority shall mutate the name of the petitioner in the revenue records subject to the final decision in the Civil Suit.

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23. It is made clear that this order has not been passed on the merits of the case and no observation made herein shall be construed to be of a final nature.

24. The petition is allowed in the above terms. Rule is made absolute, to the above extent.

25. Direct Service is permitted.

(SMT. ABHILASHA KUMARI, J.) sunil Page 17 of 17 HC-NIC Page 17 of 17 Created On Sat Aug 12 15:11:26 IST 2017

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