Gujarat High Court
Manubhai Vihabhai Raval Through His ... vs State Of Gujarat on 7 September, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10448/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10448 of 2013
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MANUBHAI VIHABHAI RAVAL THROUGH HIS POWER OF ATTORNEY
HOLDER
Versus
STATE OF GUJARAT
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Appearance:
MR HEMANT MAKWANA(3622) for the PETITIONER(s) No. 1
DEEPAK N KHANCHANDANI(7781) for the RESPONDENT(s) No. 8.3,8.4,8.5
MR RAKESH PATEL, AGP GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 1
MR NIRZAR S DESAI(2117) for the RESPONDENT(s) No. 7
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No.
1,2,3,4,5,6,8.1,8.2,8.6
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 07/09/2018
ORAL ORDER
1. By this writapplication under Article 226 of the Constitution of India, the writapplicant has prayed for the following reliefs: 6(A) Be pleased to admit the present petition.
(B) Be pleased to issue appropriate writ of certiorari or order or direction in the nature of certiorari by quashing and set aside the order dated 31/05/2012 passed by the learned collector, Anand in RTS Appeal No.5/2011 as well as the order dated 24/4/2013 passed by the learned SSRD, Ahmedabad in Revision Application No.MVV/ HKP/ANAND/173/2012.
(C) Pending hearing and final disposal of the present petition, be pleased to stay the execution, implementation and operation of the order dated 31/05/2012 passed by the learned Collector, Anand in RTS Appeal No.5/2011 as well as the order dated 24/04/2013 passed by the learned SSRD, Ahmedabad in Revision Application No.MVV/ HKP/ANAND/173/2012.
Page 1 of 8 C/SCA/10448/2013 ORDER(D) Be pleased to grant such other and further relief as the Hon'ble Court may deem fit and appropriate in the facts and circumstances of the case.
2. The case of the writapplicant in his own words as pleaded in the writapplication is as under: 2.1 That the land bearing Revenue Survey No.403/2/K having its block No.420 admeasuring 03567 situated at Mehlav Ta.Petlad is being owned and possessed by the petitioner since 2009. The said parcel of land was purchased by the petitioner by way of entering into the sale deed as found executed by Shri Vaghela Mangalbhai Bhaijibhai. The petitioner had got the sale deed regsitered on 18/3/2009. It may be submitted that the entry being Revenue Entry No.5132 in this regard came to be certified on 13/6/2009. Thereafter, the petitioner had applied for amendment in the area described in the revenue documents by way of submitting an application; inter alia seeking to modify the area in light of the description given in the registered sale deed.
2.2 Being aggrieved by the decision taken by the Learned Circle Officer in certifying the Revenue Entry No.5325 dated 8/4/2010, the respondent no.5 had approached the office of learned Deputy Collector by way of preferring RTS Appeal No.202/2010 inter alia contending that the land in question was initially owned by Shri Mohanlal Chunilal, whereas the subsequent owner had purchased the land in view of the tenancy proceedings found culminated in favour of tenants therein. It has been alleged that the said parcel of land had been illegally transferred by the said tenant i.e. Mohanlal. The respondent therein had also contended that the interested parties had not been intimated by the circle officer in any such event of any modification as may be made in connection with the description of the land in the revenue documents of the land. Having Page 2 of 8 C/SCA/10448/2013 ORDER perused the documents on record, the Deputy Collector, Petlad had allowed the appeal by setting aside the order dated 11/9/2009 and 11/6/2010 respectively passed the learned Deputy Collector, effecting various entries i.e.Revenue Entry No.5132 dated 13/6/2009, Revenue Entry No.5329 dated 12/4/2010 and the entry no.5325 dated 8/4/2010.
2.3 Being aggrieved and dissatisfied with an order above, the respondent no.5 had approached the learned Collector Anand by way of preferring RTS appeal being RTS/RA No.5/11, inter alia seeking to quash and set aside the order dated 25/1/2010 passed by the learned Deputy Collector Petlad in RTS Appeal No.202/2010. The said appeal came to be decided by the learned Collector Anand by way of passing an order dated 31/5/2012, whereby the order passed by the learned Deputy Collector in RTS Appeal No.202/2010 has been upheld.
2.4 Against the order above, the petitioner had approached the learned SSRD, Ahmedabad by way preferring Application being revision no.MVV/HKP/Anand/173/2012 inter alia seeking to quash and set aside the order passed by the learned Collector, Anand in RTS Appeal No.5/2011. The said revision came to be dismissed by the learned SSRD Ahmedabad vide its order dated 24/4/2013.
3. The impugned order passed by the S.S.R.D. reads as under: [3] Perused revision application of the applicant, written/oral arguments of the Ld. Advocate for the applicant, oral arguments of Ld. Advocate for the respondent, Order of the Collector and case papers carefully. Mutation entry no.5132 for Block No.420 of Moje: Mahelav, Taluka: Petlad, mutation entry no.5329 rectification order and mutation entry no.5325 for Block No.421 have been certified by the Circle Officer. Being aggrieved by all the entries, Chhaganbhai Shankarbhai @ Lallubhai Rathod had filed appeal before the Deputy Collector, Petlad under Rule108(5) of the Bombay Land Revenue Rules, 1972 and the Deputy Collector, Petlad, by his Order No.RTS/ Page 3 of 8 C/SCA/10448/2013 ORDER Appeal/202/10 dated 25/01/2010, had allowed appeal and ordered to quash mutation entry no.5132, 5329 and 5325. Aggrieved by the said order, the applicant - Manubhai Vihabhai Raval had preferred Revision Application under Rule108(6) of the Bombay Land Revenue Rules, 1972 before the Collector, Anand and the Collector, Anand has rejected revision application of the applicant by the impugned order. Aggrieved by the impugned order dated 31/05/2012 of the Collector, Anand, the applicant - Manubhai Vihabhai Raval had preferred Revision Application under Rule108(6a) of the Bombay Land Revenue Rules, 1972 before this court. Upon observing the orders of the lower court, it appears that mutation entry no.5132 was entered on 13/06/2009 in EDHARA record of rights for Block No.421 of Moje: Mahelav, Taluka: Petlad and mutation entry no.5329 was entered on 12/04/2010. Against the same, present dispute has been arisen. Upon implementation of consolidation scheme, Survey No.403/2 was allotted Block No.420. Looking to the mutation entries entered in the village records, total area of Survey No.403/2 was shown as Acre00, Gunthas33 whereas, upon implementation of consolidation, area of Block No.420 is shown as Hector00, Are35, Sq. Mts.68. Thus, original area was admeasuring Acre00, Gunthas 33 and upon implementation of consolidation and preparation of new records, it clearly appears that it is mentioned as Hector00, Are35, Sq. Mts.68 instead of Hector00, Are33, Sq. Mts.36 in village records in the year 197879. Thereafter, upon implementation of computerized record and verifying with original records, area of Block No.420 allotted in lieu of Survey No.403/2, was shown as Hector00, Are33, Sq. Mts.66. Jayantibhai Vihabhai gave an application on 26/02/2010 to carry out correction in the records, which was entered as mutation entry no.5329 on 12/04/2010 and the same was certified on 11/06/2010 and area was rectified as Hector00, Are35, Sq. Mts. 67 replacing Hector00, Are33, Sq. Mts.66 and the said entry was certified. But it was required to verify the old record at the time of certification of the said entry. However, it was certified by the certifying officer without verifying which is not just and proper. The land of Block No.420 is purchased by the applicant by Sale Deed on 29/05/2009 from Mangalbhai Bhaijibhai and mutation entry thereof was made in the village records by entry no.5132 on 13/06/2009 and it was certified on 11/09/2009. Area was shown as Hector00, Are 35, Sq. Mts.67 instead of Hector00, Are33, Sq. Mts.66, though it was not coherent with the records and mutation entry no.5132 was certified illegally. Therefore, the Deputy Collector, Petlad has taken just and legal decision to quash the mutation entries regarding area of the land admeasuring two gunthas and subsequently, the Collector has properly and legally confirmed the same and it does not appear to interfere in it. Therefore, the revision application is rejected and following order is passed.
Page 4 of 8 C/SCA/10448/2013 ORDER4. The dispute between the parties is one relating to the boundaries of the land and exact measurement. There are highly disputed questions of fact involved in this litigation. I find it extremely difficult to look into the issues raised by the writapplicant as they being highly disputed questions of fact. There are concurrent findings recorded by the three revenue authorities against the writapplicant. In such circumstances, I see no good reason to disturb the findings recorded by the S.S.R.D. in exercise of my extraordinary jurisdiction under Article226 of the Constitution of India.
5. Besides the same, the position has been made more clear by the affidavit filed by the Mamlatdar, wherein, the Mamlatdar has clarified as under:
3. It is most respectfully submitted that main contention raised by the petitioner that parcel of the land purchased by the petitioner was in area of 03567 as mentioned in the table prepare by Talaticum Mantri, Mahadev under the provision of Bombay Prevention Fragmentation and Amalgamation Act, 1947 (Herein after referred to as act) to substantiate aforesaid contention the petitioner has relied upon the 7/12 extract annexed at AnnexureE to the petition.
4. It is further submitted that petitioner has purchased parcel of land by way of entering into sale deed dated 29.05.2009 executed by Shri Maganbhai Bhaisibhai Vaghela wherein description of the properly has been mentioned as survey No.403/2 paiki having its Block No.420 admeasuring 0H35A67G. It is further submitted by the petitioner that difference has come on record by virtue of some portion of the land mix due to computerization of the revenue record. In short the plea of the bonafide purchser is pressed into service.
5. It is most respectfully submitted that I have gone through the memo of the petition and annexure and record. It is submitted that land pertains to Survey No.403/2 of mouje Mahadev, Taluka Petlad admeasuring in all 1 acre 26 guntha come to Mangalbhai Bhaijibhai Vaghela admeasuring 0.33 guntha and Rajendrabhai Chandubhai Shah 0.33 guntha by way of purchase under the Tenancy Act. It is most respectfully submitted that as record was modified at the interval of 10 years at that point of time the I.e.197879 measurement of land Page 5 of 8 C/SCA/10448/2013 ORDER in question was shown as H.06677 and thereafter by making bracket it was mention measurement of land in question as h03567. It is most respectfully submitted that measurement of land in question was stated 0.33. guntha on top portion of 7/12, and also reflected behind the name of Mangalbhai Bhaijibhai. It is most respectfully submitted that thereafter the amalgamation scheme was came in to existence subsequent to amalgamation land was given block No.420 and in 7/12 the measurement was shown as H03567.
6. It is most respectfully submitted that 7/12 was separately prepare for Rajendrakumar Chandulal Shah for Survey No.403/2/2 admeasuring H03092. I state that after existence of amalgamation scheme in Survey No.403/2/2, 403/1 and 404 was converted into block no.421. I state that original land of survey no.403/2/2 was 33 guntha only however, by mistake in 7/12 it is shown as 03567 sq.mtr. and the same mistake continued even after amalgamation and same was corrected by Deputy Collector Petlad in RTS Appeal No.202 of 2010 on the basis of verification of record which is just and proper.
7. It is most respectfully submitted that as stated herein above while preparation of consolidation scheme original 7/12 wherein measurement was written after the name of occupier to the extent of 0 33 guntha even on the top portion of the 7/12 it is written 033 guntha by mistake in 7/12 it is stated 03567 sq.mtr. and as the same mistake continue while making the consolidation scheme therefore, also, order passed by the Deputy Collector on 25.01.2011 is just and proper.
8. It is also submitted that even otherwise the contention raised by the petitioner cannot be accepted because in all total area of the land in question 1 acre and 26 guntha means H06667 guntha however, the contention of the petitioner is accepted it will be H03367 + H0 3567 in all H06934 which will exceed the total area of original land purchaser by Maganbhai and Rajendrabhai.
6. I also take notice of the affidavitinreply filed on behalf of the respondents nos.8.3, 8.4 and 8.5. The same reads as under:
6. With regard to the petition, I say that our grandfather Bhaijibhai Raijibhai got the 033 acre of land by way of order passed in tenancy proceedings in tenant case no.227/5556 and with respect to that a Ferfar Nodh, entry No.1981 was mutated. Thereafter the said land was owned by the Mangalbhai Bhaijibhai, Dahiben Bhaijibhai, Lakhiben Bhaijibhai and Jadaben Bhaijibhai who were the legal heirs of the Bhaijibhai Raijibhai. When Fragmentation Scheme was Page 6 of 8 C/SCA/10448/2013 ORDER introduced, the said Survey No.403/2 converted into the Block No.420 and at that time the area of the land was described as 03568. But from the record it is very much clear that the actual area of the land is of 033 acre but at the time of Fragmentation Scheme while recording the new record in the 7/12 form during the year of 197879 by mistake 03567 was recorded instead of 03367. But when the method of computerization was introduced the main record was matched and the area of the said land was correctly recorded as 033. These findings are recorded by the learned Additional Secretary. Revenue Department (Appeals), Ahmedabad in Revision Application No.MVV/HKP/Anand/173/2012 while rejecting the said application.
7. Further I submit that the petitioner herein had registered the sale deed which took place between Mangalbhai Bhaijibhai and him by way of adopting the fraudulent tactics by defrauding and misleading Mangalbhai Bhaijibhai and family members, and this can be evident from the fact that the said sale deed was registered on 18/03/2009 and from the available record, it seems that Dahiben Bhaijibhai and Lakhiben Bhaijibhai had wave their respective right in the said land on 1/12/2008. But the true fact is that Dahiben died long time ago and Lakhiben died on 18/08/2007. Moreover, the record shows that Jadaben had wave her right in the said property on 23/1/2009 but the truth is that Jadaben died on 21/06/2005. So the petitioner by applying the fraudulent tactics mutated two Ferfar Nodh.5000 and 5045 which is related with the waving of the right in the said land. But as the Death Certificates of Lakhiben and Jadaben proves that they were not alive at the time of waving their rights in the said land and it was the petitioner's malafide intention and fraudulent tactics to show that Mangalbhai Bhaijibhai was the sole owner of the said land so that he can acquire the said property from Mangalbhai Bhaijibhai.
8. Further I submit that the contention of the petitioner that the area of the said land is 035 is absolutely incorrect. There are total four Ferfar Nodh which proves that the area of the said land is 033 and not 035. These entries are recorded in the Village Form No.6 and in all of these Ferfar Nodh the area of the said land is recorded as 0
33.
9. Further I submit that from the sale deed of Respondent 7 and Shah Rajendrakumar Chandulal who was the original owner of the Survey No.403/1 it is very much clear that the area of the land in question is 0.33 Guntha and not 0.35. So it shows that it is the malafide intention on the part of the petitioner by adopting the various fraudulent tactics.
10. In light of whatever is stated in forgoing paragraphs, it is Page 7 of 8 C/SCA/10448/2013 ORDER crystal clear that the award passed by the Additional Secretary, Revenue Department (Appeals), Ahmedabad dated 24/04/2013 in Revision Application No.MVV/HKP/Anand/173/2012 is absolutely legal, just proper and as per law and therefore the present petition being devoid of any merits deserves to be dismissed with cost.
7. However, it is clarified that it shall be open for the writapplicant to avail of an appropriate legal remedy before the appropriate forum in accordance with law as regards the dispute.
8. In view of the above, this writapplication fails and is hereby rejected. Notice is discharged. Adinterim relief, if any, stands vacated.
(J.B.PARDIWALA, J) aruna Page 8 of 8