Gujarat High Court
Gatil Properties Private Limited vs State Of Gujarat & 7 on 7 September, 2017
Author: Vipul M. Pancholi
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/1427/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1427 of 2017
In SPECIAL CIVIL APPLICATION NO. 10462 of 2017
With
CIVIL APPLICATION NO. 11443 of 2017
In
LETTERS PATENT APPEAL NO. 1427 of 2017
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GATIL PROPERTIES PRIVATE LIMITED....Appellant(s)
Versus
STATE OF GUJARAT & 7....Respondent(s)
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Appearance:
MR AS VAKIL, ADVOCATE for the Appellant(s) No. 1
MR Y.N.OZA, SENIOR ADVOCATE WITH MR NIRZAR S DESAI,
CAVEATOR for the Respondent(s) No. 7 - 7.4 , 8
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 07/09/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This appeal is filed by the appellant - original respondent No.6 under Clause 15 of the Letters Patent against an order dated 31.07.2017 passed by the learned Single Judge in Special Civil Application No.10462 of 2017, by which the learned Single Judge has admitted the petition and granted interim relief in terms of para 16(C) of the petition.
2. The brief facts leading to filing of the present appeal are as under:
Page 1 of 9HC-NIC Page 1 of 9 Created On Sat Sep 09 21:25:43 IST 2017 C/LPA/1427/2017 ORDER 2.1. That land bearing Survey No.598/2, admeasuring 7386 sq. mtrs. of village Godhavi, Taluka Sanand, District Sub-District Ahmedabad was originally of the ownership of one Jivubha Udaysinh Vaghela. He executed a will on 04.04.1986 by which he bequeathed the land in dispute to the original petitioners. Thereafter he died on 28.05.1986. However, on the basis of the will, mutation entry No.2466 came to be mutated in the name of the original petitioners on 21.09.1986, which was subsequently certified.
Thereafter, the Deputy Collector, Sanand initiated suo moto proceedings being RTS Appeal No.38/2004 and cancelled the mutation entry No.2466 by an order dated 20.12.2005 against which the petitioners filed revision application before the Collector. In the meantime, on 28.09.2006, mutation entry No.5251 was entered into the revenue record whereby names of legal representatives of Jivubha were mutated. The same was certified thereafter. Said legal representatives waived their rights in favour of one of the legal representatives viz. Vanubhai. Therefore, mutation entry No.5252 was recorded in revenue record on 14.11.2006.
2.2. In the meantime, by an order dated 03.01.2007, the Revision Application preferred by the petitioners came to be rejected by the Collector. The petitioners therefore filed Revision Application No.25 of 2007 before the Page 2 of 9 HC-NIC Page 2 of 9 Created On Sat Sep 09 21:25:43 IST 2017 C/LPA/1427/2017 ORDER Secretary, Revenue Department (Appeal), Ahmedabad (hereinafter referred to as the 'SSRD' for short). In the meantime, legal representative Vanubhai sold the land in dispute to the original respondent No.7 - present opponent No.6, Pankajkumar Mulshankar Taraiyya by a registered sale deed dated 29.05.2007. Accordingly, revenue entry No.5629 came to be mutated in the revenue record which was subsequently certified.
2.3. In the meantime, the petitioners filed Special Civil Suit No.477 of 2007 for declaration that the deceased Jivubha (the testator) was competent to execute a will and the petitioners are entitled to hold the land as per the will.
2.4. As the Revision Application No.25 of 2007 was not heard by SSRD, the petitioners filed Special Civil Application No.4107 of 2008 before this Court. This Court granted ad-interim relief by which parties were directed to maintain the status quo as on 05.03.2008 qua revenue entry No.2466 and thereafter by disposing of the said petition by an order dated 27.08.2008, this Court continued the interim relief.
2.5. Thereafter, SSRD passed an order on 23.09.2008 and directed the parties to maintain status quo in Revision Application No.25 of 2007.
2.6. The original respondent No.7 - Pankajkumar Page 3 of 9 HC-NIC Page 3 of 9 Created On Sat Sep 09 21:25:43 IST 2017 C/LPA/1427/2017 ORDER Mulshankar executed a sale deed dated 04.02.2010 in favour of the original respondent No.6 - present appellant and therefore mutation entry No.6957 came to be mutated in the revenue record which was subsequently certified.
2.7. The respondent No.1 - SSRD, on an application of the present appellant, impleaded the appellant as party respondent in Revision Application No.25 of 2007 and ultimately by an order dated 24.03.2017, SSRD dismissed the Revision Application No.25 of 2007 filed by the original petitioners and thereby confirmed the order passed by the Collector as well as Deputy Collector. Petitioners have therefore filed the captioned petition.
2.8. The learned Single Judge by the impugned order admitted the petition and issued the Rule, which is made returnable on 29.09.2017. Learned Single Judge also granted interim relief in terms of para 16(C) of the petition. The original respondent No. 6 - present appellant has, therefore, filed the present appeal.
3. Heard learned advocate Mr. A. S. Vakil for the appellant - original respondent No.6 and learned Senior Counsel Mr. Y. N. Oza assisted by learned counsel Mr. Nirzar S. Desai for the present respondent Nos. 7 and 8 - original petitioners.
Page 4 of 9HC-NIC Page 4 of 9 Created On Sat Sep 09 21:25:43 IST 2017 C/LPA/1427/2017 ORDER
4. Mr. Vakil mainly contended that the order passed by the learned Single Judge is non- speaking order and while granting interim relief, learned Single Judge has not assigned any reason nor recorded the contentions of the appellant and therefore the said order be set aside.
5. Mr. Vakil thereafter contended that the original petitioners are claiming right, title and interest in the land in question on the basis of the will dated 04.04.1986 executed by the original land owner Jivubha. Said Jivubha was an agriculturist, whereas the original petitioners are non-agriculturist and therefore the transfer of the land in question by way of will was not permissible under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, and more particularly, in view of the restrictions imposed in Section 63 of the said Act. Learned advocate Mr. Vakil has placed reliance upon the decisions rendered by the Division Bench of this Court in the case of Rajenbhai Baldevbhai Shah v. Baijiben Kabhaibhai Patanvadia & Ors., reported in 2009(2) G.L.R. 1784 and also in case of Shamjibhai Keshavjibhai Kansagra (Patel) & Ors., v. Principal Secretary, Revenue Department (Appeals) & Ors., reported in AIR 2011 Gujarat
55. Learned advocate Mr. Vakil has also placed reliance upon the decision rendered by the learned Single Judge of this Court in the case of Patel Jividas Trikamdas v. District Collector, Page 5 of 9 HC-NIC Page 5 of 9 Created On Sat Sep 09 21:25:43 IST 2017 C/LPA/1427/2017 ORDER reported in 1996(2) GLR 688.
6. Relying upon the aforesaid decisions, learned advocate Mr. Vakil submitted that the names of the petitioners are entered into the revenue record by mutation entry in question on the basis of will executed by Jivubha - original land owner, which was illegal and therefore merely because there was delay in initiating the proceedings for cancellation of such illegal entry, it would not justify the illegal transaction. Therefore, Mr. Vakil submitted that the delay will not come in the way of the revenue authority to initiate the proceedings. He, therefore, requested that the impugned order passed by the learned Single Judge be set aside.
7. On the other hand, learned Senior Counsel Mr. Oza submitted that there was a gross delay of more than 19 years in initiating the proceedings by the authority for cancellation of the entry in question. Thus, only on the ground of gross delay in initiating the proceedings the orders passed by the respondent authorities are required to be set aside and therefore when the learned Single Judge has considered the said aspects and admitted the petition, rightly granted interim relief in favour of the petitioners. At this stage, it is submitted that this Court in the petition being Special Civil Application No.4107 of 2008 filed by the petitioners directed the Page 6 of 9 HC-NIC Page 6 of 9 Created On Sat Sep 09 21:25:43 IST 2017 C/LPA/1427/2017 ORDER parties to maintain status quo with regard to entry No.2466. Thereafter, the SSRD has also directed to maintain the status quo in the Revision Application No.25 of 2007 filed by the petitioners by an order dated 23.09.2008 and the said order continued till the Revision Application is dismissed by the SSRD in March 2017. Thus, when the interim protection was continued during the pendency of the Revision Application for more than 10 years, learned Single Judge has rightly granted stay in favour of the original petitioners and therefore the present appeal be dismissed.
8. Having considered the submissions canvassed on behalf of the learned advocates appearing for the parties and having gone through the material produced on record, it is revealed that the present appeal is filed against an interim order passed by the learned Single Judge. It has emerged from the record that mutation entry No.2466 was mutated in the revenue record on 21.09.1986 on the basis of the will dated 04.04.1986 executed by the original land owner Jivubha in favour of the petitioners. The said entry was certified on 17.12.1986. The Deputy Collector passed an order on 20.12.2005 in the proceedings being RTS Appeal No.38 of 2004 by which the said entry was cancelled, against which Revision Application No.51 of 2006 was filed by the petitioners, which was also dismissed and Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat Sep 09 21:25:43 IST 2017 C/LPA/1427/2017 ORDER against the dismissal of the said Revision Application by the Collector, Revision Application No.25 of 2007 was filed by the petitioners before the SSRD. It is also revealed from the record that when the SSRD has not heard the said Revision Application, petitioners preferred Special Civil Application No.4107 of 2008 before this Court and this Court directed the parties to maintain status quo by an order dated 05.03.2008 and thereafter on 27.08.2008 the said petition came to be disposed of and interim relief was continued. Thereafter also the SSRD by an order dated 23.09.2008 passed an order to maintain status quo during the pendency of the Revision Application No.25 of 2007. The said order of status quo continued till the SSRD dismissed Revision Application No.25 of 2007 on 24.03.2017. Petitioners have, thereafter, preferred the captioned petition and the learned Single Judge granted interim relief in terms of para 16(C).
9. It is not in dispute that because of the order of status quo granted by this Court as well as the respondent authorities during the pendency of the proceedings, the entry in question i.e. mutation entry No.2466 is not cancelled.
10. At this stage, we may observe that when the petition is admitted by the learned Single Judge and is kept for final hearing on 29.09.2017, it Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat Sep 09 21:25:43 IST 2017 C/LPA/1427/2017 ORDER would not be proper for us to deal with the contentions raised by the learned advocates appearing for the parties.
11. In view of the aforesaid facts and circumstances of the case, when the order of status quo with regard to entry in question was in force since last number of years, learned Single Judge has not committed any error while granting interim relief in favour of the petitioners. Accordingly, present appeal is not entertained. However, it is open for the learned advocate appearing for the appellant to request the learned Single Judge for expeditious hearing of the captioned petition. As and when such request is made, we request the learned Single Judge to consider the same. In view of disposal of the appeal, civil application also stands disposed of.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 9 of 9 HC-NIC Page 9 of 9 Created On Sat Sep 09 21:25:43 IST 2017