Gujarat High Court
N C Manilal Company vs State Of Gujarat on 6 July, 2023
NEUTRAL CITATION
C/SCA/5019/1997 ORDER DATED: 06/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5019 of 1997
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N C MANILAL COMPANY
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR PRASHANT MANKAD(2189) for the Petitioner(s) No. 2
MR. KIRTAN H MISTRY(10012) for the Petitioner(s) No. 1
MR PRANAV DHAGAT AGP for the Respondent(s) No. 1,2,3
MR YASH PATEL ADVOCATE WITH MR NAMAN K BRAHMBHATT(11307)
for the Respondent(s) No. 4.1,4.2,4.3,4.4,4.5
DECEASED LITIGANT for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 06/07/2023
ORAL ORDER
[1] By way of this petition under Article 227 of the Constitution of India, the petitioners have called in question the orders dated 13th June 1997, 9th March 1993 and 31st March 1992 passed by the revenue authorities respectively, by which mutation of entry No.346 dated 20th January 1964 mutated in favour of the petitioners pursuant to the registered sale deed dated 8 th August 1962 came to be cancelled.
[2] The brief facts giving rise to the present petition can be summarized as under:
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NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined [2.1] By virtue of certificate No.36/59 dated 11 th October 1959 issued by the Deputy Collector, Palitana, Shri Manilal Kunverji, who was then Administrator of the petitioner - company and was a farmer, purchased the land bearing survey No.189 paiki admeasuring 3 Acres from one Shamji Khima by way of registered sale deed 8th August 1962. The mutation of entry No.346 dated 20 th January 1964 was mutated in the revenue record and the same was certified on 27th February 1965.
[2.2] After almost a period of 28 years, one Ganesh Shamji, as heir of the vendor Shamji Khima, made an application to the Assistant Collector, Palitana for cancelling the aforesaid entry No.346. On the basis of such application, the Assistant Collector, Palitana issued a show cause notice dated 16 th January 1992 to the petitioners by taking entry No.346 under review. The said show cause notice was issued to the petitioners on the ground that at the time of mutation of entry No.346, the petitioner was not an agriculturist. On behalf of the petitioner, an exhaustive reply was filed to the show cause notice. However, the Assistant Collector, vide its order dated 31st March 1992, was pleased to cancel the said Page 2 of 20 Downloaded on : Sat Sep 16 20:58:19 IST 2023 NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined entry No.346.
[3] Being aggrieved and dissatisfied by the aforesaid, the petitioners preferred an appeal No.Rev/Appeal/53/91-92/1542-93 before the Collector, Bhavnagar. The Collector, Bhavnagar, vide its order dated 9th March 1993, dismissed the appeal filed by the petitioners by confirming the order dated 31 st March 1992 passed by the Assistant Collector, Palitana.
[4] Being aggrieved and dissatisfied by the aforesaid, the petitioners approached the respondent No.1 - Secretary, Revenue Department (Appeals) by way of revision application under Section 211 of the Gujarat Land Revenue Code. The respondent No.1, vide its order dated 13th June 1997, rejected the said revision application.
[5] It is pertinent to note that subsequently, the private respondents approached the learned Principal Senior Civil Judge, Palitana by way of Regular Civil Suit No.242 of 2017 (old Regular Civil Suit No.334 of 2002) against the present petitioners. However, the said suit culminated into consent decree dated 15 th Page 3 of 20 Downloaded on : Sat Sep 16 20:58:19 IST 2023 NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined July 2019.
[6] The aforesaid consent decree, in absence of any challenge by anybody, has attained its finality.
[7] Being aggrieved and dissatisfied by the aforesaid orders passed by the revenue authorities, the petitioners have approached this Court by way of this petition under Article 227 of the Constitution of India inter alia praying for appropriate writ, directions or orders, quashing and setting aside the impugned orders passed by the revenue authorities.
[8] I have heard Mr. Prashant Mankad, learned advocate and Mr. Kirtan Mistry learned advocate for the respective petitioners, Mr. Yash Patel learned advocate on behalf of Mr. Naman Brahmbhatt, learned advocate for the respondents Nos.4.1 to 4.5 and Mr. Pranav Dhagat learned A.G.P. for the respondents - State authorities.
[9] Mr. Mistry, learned advocate for the petitioners, while challenging the impugned orders passed by the revenue authorities, has made the following submissions:
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NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined [9.1] Mr. Mistry, learned advocate for the petitioners submitted that name of the petitioner mutated vide entry No.346 is pursuant to the registered sale deed dated 8 th August 1962 holds the field. In other words, Mr. Mistry submitted that the said registered sale deed is valid and in existence. In that view of the matter, Mr. Mistry submitted that in view of the provisions of Section 135C of the Gujarat Land Revenue Code, it is the duty of the revenue authorities to give effect of the registered sale deed in the record of right. Thus, Mr. Mistry submitted that the entry mutated pursuant to the registered sale deed could not have been rejected by the authorities even by virtue of Section 135C of the Gujarat Land Revenue Code.
[9.2] Mr. Mistry would next submit that by exercising suo motu power, the Assistant Collector, Palitana quashed and set aside the entry No.346 dated 20th January 1964 after almost a period of 28 years. Mr. Mistry further submitted that the authorities could not have exercised suo motu power beyond unreasonable period.
Mr. Mistry submitted that the law in this regard is well settled as to what could be the reasonable time. Considering the settled law, the Page 5 of 20 Downloaded on : Sat Sep 16 20:58:19 IST 2023 NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined suo motu power exercised by the Assistant Collector i.e. after almost a period of 28 years, cannot be, at any stretch of imagination, said to be exercised within the reasonable period. [9.3] To substantiate the aforesaid contentions, Mr. Mistry has relied upon the decisions of this Court in the case of State of Gujarat vs. Nagjibhai Ishwarbhai Patel [R/Letters Patent Appeal No.1182 of 2022 decided on 13 th September 2022] and in the case of State of Gujarat vs. Jitendrasinh Jagmalsinh Sodha [R/Letters Patent Appeal No.546 of 2021 decided on 2nd January 2023]. [9.4] Mr. Mistry next submitted that as per the show cause notice, the Assistant Collector sought review on the ground that the status of the petitioner being an agriculturist was doubtful. Mr. Mistry further submitted that during the course of proceeding, the Assistant Collector, Palitana, though observed and held that the agricultural status of the petitioner is not doubtful, however, the authority proceeded the matter on other ground that the land in question was not being used for the purpose for which it was allotted. In that view of the matter, Mr. Mistry submitted that not only the Assistant Collector acted beyond the scope of show cause Page 6 of 20 Downloaded on : Sat Sep 16 20:58:19 IST 2023 NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined notice, but, while exercising power under the revenue proceedings also entered into to verify the violation of other enactment. Mr. Mistry, therefore, submitted that the orders passed by the revenue authorities are not tenable in the eye of law. [9.5] To substantiate the aforesaid contentions, Mr. Mistry has relied upon the decision of this Court in the case of Gandabhai Dalpatbhai Patel vs. State of Gujarat & Others reported in 2005 (2) GLR 1370.
[10] By making above submissions, Mr. Mistry, learned advocate for the petitioners has prayed this Court to allow this petition. [11] Per contra, Mr. Yash Patel, learned advocate on behalf of Mr. Naman Brahmbhatt for the private respondents has fairly conceded that Regular Civil Suit No.242 of 2017, at the instance of his clients i.e. the respondents Nos.4.1 to 4.5 herein, now culminated into consent decree and that there is no dispute now between the petitioners and the respondents Nos.4.1 to 4.5 herein. Mr. Patel, therefore, submitted that appropriate orders may be passed accordingly.
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[12] Mr. Pranav Dhagat, learned A.G.P. for the respondents - State authorities, while supporting the orders passed by the revenue authorities, has made the following submissions:
[12.1] Mr. Dhagat, learned A.G.P. for the respondents - State authorities, while opposing the present petition, vehemently contended that the orders passed by the revenue authorities are perfectly justified because the land in question was not being used by the petitioners for the purpose for which it was allotted and thereby, the Assistant Collector, Palitana has rightly exercised its suo motu power by cancelling the entry No.346.
[12.2] Mr. Dhagat further submitted that at the time of mutation of entry No.346, service of notice under Section 135D of the Land Revenue Code was not proper and thereby, the said entry No.346 has rightly been cancelled in exercise of suo motu power by the Assistant Collector, Palitana.
[12.3] Mr. Dhagat, however, could not dispute the ratio laid down by this Court in the case of Gandabhai Dalpatbhai Patel (supra) as well as could not dispute the fact that now, there is a Page 8 of 20 Downloaded on : Sat Sep 16 20:58:19 IST 2023 NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined settlement arrived at between the parties and the consequential consent decree came to be passed by the competent Civil Court.
[13] By making above submissions, Mr. Dhagat, learned A.G.P. for the respondents - State authorities has prayed this Court to pass appropriate orders in the interest of justice. [14] I have heard learned advocates appearing for the respective parties and have gone through the material produced on record. No other and further submissions have been canvassed by the learned advocates appearing for the respective parties. [15] Considering the submissions of the learned advocates appearing for the parties and the material available on record, it appears that the land in question was permitted to be purchased by the Assistant Collector, Palitana by issuing certificate No.36/59 dated 11th October 1959. Pursuant to the said certificate, land was purchased by the petitioners by way of registered sale deed 8 th August 1962 and the entry No.346 to that effect was posted and certified on 27th February 1965 in the record of right. Admittedly, after almost a period of 28 years, the Assistant Collector, Palitana Page 9 of 20 Downloaded on : Sat Sep 16 20:58:19 IST 2023 NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined exercised suo motu power to review the entry No.346 by issuing show cause notice 16th January 1992 to the petitioners on the ground that the petitioner was not an agriculturist at the time when the said entry was mutated. Indisputably, in the proceeding and the order, the Assistant Collector, Palitana categorically found and observed that the status of the petitioner being an agriculturist is no more doubtful. However, the Assistant Collector has stepped further in the proceeding by enlarging the scope of show cause notice and passed an order dated 31st March 1992 by cancelling the entry No.346 on the ground that the land was not being used by the petitioner for the purpose for which it was allotted. Thus, the Assistant Collector, Palitana appears to have not only initiated suo motu power after unreasonable period of 28 years, but also expanded the scope of show cause notice.
[16] Keeping in mind the aforesaid facts and circumstances, it would be apt to take note of the law laid down by this Court on the ground of delay as well as exercise of powers in the revenue proceedings and breach of other Acts.
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[17] This Court in the case of Nagjibhai Ishwarbhai Patel (supra) observed thus:
"(5) Hon'ble Apex Court on such exercise of jurisdiction beyond reasonable period in the case of Satyan Vs. Deputy Commissioner and others reported in (2020) 14 SCC 210 has held:
12.1. Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v.
K. Suresh Reddy & Ors.2 - the question posed to be decided in the appeal is referred to in para 1 and the question has been answered in para 19. Both paras 1 and 19 are read as under:
"1. In all these appeals, the following question of law arises for consideration:
"Whether the Collector can exercise suo motu power under sub-section (4) of Section 50-B of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 at any time or such power is to be exercised within a reasonable time." .... .... .... .... ....
"19. It is also necessary to note that the suo motu power was sought to be exercised by the Joint Collector after 13- 15 years. Section 50-B was amended in the year 1979 by adding sub-section (4), but no action was taken to invalidate the certificates in exercise of the suo motu power till 1989. There is no convincing explanation as to why the authorities waited for such a long time. It appears that subsection (4) was added so as to take action where alienations or transfers were made to defeat the provisions of the Land Ceiling Act. The Land Ceiling Act having come into force on 1-1-1975, the authorities should have made inquiries and efforts so as to exercise the suo motu power within reasonable time. The action of the Joint Collector in exercising suo motu power after several years and not within reasonable per;iod and passing orders cancelling validation certificates given by the Tahsildar, as rightly held by the High Court, could not be sustained."Page 11 of 20 Downloaded on : Sat Sep 16 20:58:19 IST 2023
NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined The ratio, thus, is that such suo moto powers have to be exercised within a reasonable period of time. 12.2. Situ Sahu & Ors. v. State of Jharkhand & Ors. 3 - the exercise of power in respect of transactions, which required prior 3 (2004) 8 SCC 340 sanction of the Deputy Commissioner was again observed to be one which had to be exercised within a reasonable period of time. 12.3. Chhedi Lal Yadav & Ors. v. Hari Kishore Yadav (Dead) through Legal Representatives & Ors.4- the view expressed is the same as in the aforesaid two judgments in para 13, as under:
"13. In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the statute. In the case before us, we are clear that the action is grossly delayed and taken beyond reasonable time, particularly, in view of the fact that the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights."
12.4. Vivek M. Hinduja v. M. Aswatha & Ors.5- the provisions of the said Act were in issue, where suo moto action was sought to be taken in 1998, in respect of transactions of the vintage 1967, and this was held to be a long delay, which did not warrant the exercise of such power.
(6) Yet, another decision which we may not go un-noticed is the decision delivered by the Coordinate Bench of this Court in the case of Parkhanji Mulji Vs. Gujarat Revenue Tribunal reported in 2020 SCC OnLine Guj 3346, in which after analyzing entire proposition in terms of the issue of delayed exercise of revisional jurisdiction, Coordinate Bench has propounded that delayed exercise of revisional jurisdiction is not just and proper. We also deem it proper to reproduce concluding observations made by the Coordinate Bench hereunder:-
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NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined "24. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions ortransactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; forotherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.
25. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellant-State to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. In as much as, the notice was issued as late as on 31st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991.
Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed."
10. Thus, the Supreme Court, in Ranga Reddy (supra) Page 13 of 20 Downloaded on : Sat Sep 16 20:58:19 IST 2023 NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined made itself very clear that even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. What is important is the observation of the Supreme Court that simply describing an act or transaction to be fraudulent, will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority."
11. In view of the aforesaid discussion and in view of the undisputed position prevailing on record that suo- motto powers questioning the sale transaction of the year 1969 was sought to be reviewed in the year 2004 after about 30 years, we are of the considered opinion that there is no error committed by learned Single Judge who had set aside the proceedings so initiated on the ground of delay and rightly so. Hence, we are of the view that appeal is devoid of merit and it stands DISMISSED and judgment and order passed by the learned Single Judge in Special Civil Application No.9780 of 2018 dated 17.2.2020 is upheld. No order as to costs."
[18] In the case of Jitendrasinh Jagmalsinh Sodha (supra), this Court observed in paras 14, 15 and 16 as under:
"14. The statutory authorities exercising suo motu powers would be required to exercise the same within a reasonable time and exercise of such powers beyond reasonable time would not justify their act and render the exercise arbitrary. Where a statutory provision for exercise of suo motu power of revision does not prescribe any limitation, it is trite law that such power should be exercised within a reasonable period of time even in case of transaction which can be termed as void transaction.
15. The Hon'ble Apex Court in the case of Joint Collector Ranga Reddy District and another vs. D. Narsing Rao and others (supra) had held that exercise of the revisional powers after delay would tantamount to fraud upon statute. It has been further held :Page 14 of 20 Downloaded on : Sat Sep 16 20:58:19 IST 2023
NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined "31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority. 32. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellant-State to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. In as much as, the notice was issued as late as on 31st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed."
16. Keeping these authoritative principles in mind when the facts Page 15 of 20 Downloaded on : Sat Sep 16 20:58:19 IST 2023 NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined on hand are looked into at the cost of repetition it is to be held that the suo motu power is sought to be exercised by the Collector for setting aside the mutation entries made in the year 1990 by issuing the show cause notice in the year 2012 i.e. on 14.08.2012 i.e. after a period of 22 years. The reason for exercising such suo motu power is on the ground of revenue entries having been made by overwriting. As to when said overwriting was detected or how the subsequent entries were allowed to be made and certified and yet no action was taken is not forthcoming from the said show cause notice. Though it has been stated in the show cause notice that entries were illegally made, as to what is the illegality that had taken place while carrying out such entries is not forthcoming from the show cause notice as well as from the order passed by the Collector on 20.02.2013. On the other hand, disputed entries would reflect that land came to be allotted at an undisputed point of time by recognizing the allottee as a tenant. If the records are not forthcoming to prove the grant of tenancy, that by itself would not be a ground on which the entries made in the revenue record would lose its presumptive value nor any inference can be drawn doubting the tenancy. The person who alleges the entries to be bad on account of any illegality having been committed has to necessarily prove the same and in the absence of any proof being led in this regard, the order of the Collector as confirmed by the Special Secretary, Revenue Department, could not have been sustained. Hence, learned Single Judge was correct and justified in setting aside the impugned orders and allowing the Special Civil Applications which cannot be found fault with. We do not find any infirmity either on facts or in law to interfere with the well- reasoned order passed by the learned Single Judge." [19] This Court in the case of Gandabhai Dalpatbhai Patel (supra) observed thus:
"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 Page 16 of 20 Downloaded on : Sat Sep 16 20:58:19 IST 2023 NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined 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 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 Civil 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 Page 17 of 20 Downloaded on : Sat Sep 16 20:58:19 IST 2023 NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined 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 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.
11. So far as submissions and arguments on behalf of the petitioner that by virtue of the aforesaid transaction that there would be a breach of provisions of the Bombay Prevention of Fragmentation Act as the land would be fragmented and therefore also the respondent could not have purchased the land in question and the said transaction was in breach of provisions of the Act and therefore also the entry in favour of the respondent could not have been made on the basis of the said sale. This aspect is already considered by this Court in the case of Evergreen Apartment Cooperative Housing Society Vs. Special Secretary, Revenue Department, Gujarat State, reported in 1991(1) GLR 113, and also in the case of Siddharth B. Shah & Ors. Vs. State of Gujarat, reported in 1999(3) GLR Page 2527. This Court in the aforesaid two judgments has considered the scope and ambit of Rule 108 of the Bombay Land REvenue Rules and the jurisdiction of the revenue authorities while considering the RTS proceedings and has held as under;
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"So far as the proceedings under Section 108 of the Rules popularly known as RTS proceedings are concerned it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by the competent authorities under special enactments. Independently the revenue authorities, as mentioned in 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transactions recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed."
Considering the judgment of this Court in aforesaid two cases, there is no substance in the argument and submission on behalf of the petitioner to the effect that while considering the RTS proceedings and making necessary entry in favour of the respondents, the revenue authority was also required to consider that by aforesaid transaction there will be breach of provisions of Fragmentation Act or not and the same is required to be rejected." [20] Considering the aforesaid enunciation of law and keeping in mind the facts of the present case, in my considered opinion, the law laid down by this Court in the aforesaid judgements is squarely applicable to the present case. In other words, nothing is brought to the notice of this Court to take a different view then what has been taken by this Court in the above quoted judgements. [21] In view of the aforesaid, in my considered opinion, exercise of suo motu power at the instance of the Assistant Collector cannot be Page 19 of 20 Downloaded on : Sat Sep 16 20:58:19 IST 2023 NEUTRAL CITATION C/SCA/5019/1997 ORDER DATED: 06/07/2023 undefined said to be exercised within the reasonable period. More so, in the proceedings, the Assistant Collector, admittedly, has exceeded its jurisdiction by enlarging the scope of show cause notice as well as by taking into consideration breach of other enactment. [22] In view of the aforesaid facts and circumstances of the present case, in my view, the impugned orders passed by the revenue authorities, therefore, cannot be said to be within four corners of law and deserve to be quashed and set aside. [23] For the foregoing reasons, the present petition deserves to be allowed and is hereby allowed. The impugned orders dated 13th June 1997, 9th March 1993 and 31st March 1992 passed by the revenue authorities respectively are hereby quashed and set aside. The revenue authorities are hereby directed to restore entry No.346 dated 20th January 1965, which was certified on 27 th February 1965, in the record of right.
(NIRAL R. MEHTA,J) CHANDRESH Page 20 of 20 Downloaded on : Sat Sep 16 20:58:19 IST 2023