Gujarat High Court
Eruchshaw Hormasji Variava Since Decd. ... vs State Of Gujarat & 3 on 15 September, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/10894/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10894 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ERUCHSHAW HORMASJI VARIAVA SINCE DECD. THROUGH
LEGAL....petitioners(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR BG PATEL, ADVOCATE for the petitioners(s) No. 1 - 1.3
MR R E VARIAVA, ADVOCATE for the petitioners(s) No. 1 - 1.3
DELETED for the Respondent(s) No. 2.3 , 2.6
MR KRUTIK PARIKH, GOVERNMENT PLEADER for the Respondent(s) No. 1
MR PJ DAVAWALA, MR JOY MATHEW, ADVOCATE for the Respondent(s)
No. 2.1 - 2.2 , 2.4 - 2.5 , 2.7 , 3.1 - 3.4
RULE SERVED for the Respondent(s) No. 2.1 - 2.2 , 2.4 - 2.5 , 3 - 3.4 , 4
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 15/09/2017
ORAL JUDGMENT
1.0 At the outset, it may be noted that this Court, while issuing rule in Civil Application (For Orders) No. 12958 of 2016, had permitted to Page 1 of 18 HC-NIC Page 1 of 18 Created On Sun Oct 01 22:35:59 IST 2017 C/SCA/10894/2000 JUDGMENT delete Respondent Nos. 2/3 to 2/6 vide its order dated 22.12.2016, and hence, this petition is being considered qua the remaining respondents.
2.0 This is a petition under Articles 226 and 227 of the Constitution of India in the following factual background:
One Yashwantlal Trumbhaklal Desai owned and possessed the land bearing Survey No. 224, admeasuring 1 acre - 39 gunthas, situated at Village: Gundia, Taluka: Valia, District: Bharuch (herein after referred to as the 'said land or land in question'). The said land was allotted to one Dhanji Hirabhai on coming on for the Jagir Abolition Act, 1954, who became the owner of the same.
2.1 One Ganeshmal Jasraj raised dispute with regard to he being the tenant of the land in question. After initiation of the proceedings under Section 32(G) of the Bombay Tenancy & Agricultural Act, 1948 (for short, 'the Tenancy Act'), Ganeshmal was held to be the tenant of the said land bearing Survey No. 224 (New No. 246), and therefore, he made the payment of the purchase price fixed by the Mamlatdar and a certificate was issued to him by the concerned authority under Section 32(M) of the Tenancy Act.Page 2 of 18
HC-NIC Page 2 of 18 Created On Sun Oct 01 22:35:59 IST 2017 C/SCA/10894/2000 JUDGMENT An entry being Entry No. 329 came to be mutated to that effect on 10.10.1968, which later on, came to be certified.
2.2 After the partition of the land between Ganeshmal Jasraj and his brothers, the aforesaid new Survey No. 246 came to be allotted to one Hastimal Gulabchand, who happened to be nephew of Ganeshmal. Hastimal sold the said land to the present petitioners by way of sale deed dated 16.02.1970 and the petitioners continued to enjoy the ownership and possession of the land in question by cultivating the same.
2.3 In the year 1990, an inquiry was initiated by the Revenue Authority under Sections 73A and 73AA of the Bombay Land Revenue Code ('the Code' in brief). However, the same came to be dropped vide order dated 29.01.1992. This order has become final and no challenge was made to the same by anyone.
2.4 It is alleged that Respondent Nos. 2 to 4 prevented the petitioners, by using force, from entering into the said land and also tried to take possession of the same. Hence, the petitioners was constrained to prefer Regular Civil Suit No. 40 of 1992 before the Civil Judge (J.D.), Valia. Later on, it was transferred to Page 3 of 18 HC-NIC Page 3 of 18 Created On Sun Oct 01 22:35:59 IST 2017 C/SCA/10894/2000 JUDGMENT Civil Judge (J.D.), Jaghadia, by renumbering it as Regular Civil Suit No. 27 of 1994. Here, it may be noted that, at the initial stage, the Civil Court at Valia had granted the order of status quo. However, after hearing both the sides, it vacated the same on 23.03.1995.
Aggrieved by the vacation of the interim order of the status quo by the trial Court, an appeal was preferred by the present petitioners being Appeal No. 35 of 1995, where, the Court, after hearing both the sides, was pleased to grant stay in favour of the present petition vide its order dated 23.07.1996.
2.5 It is the grievance on the part of the petitioners that during the pendency of the appeal before the appellate forum, Respondent Nos. 2 to 4 filed an application for mutating an entry on the basis of the trial Court's interim order and the authority concerned, without issuing notice under Section 135 of the Code, mutated an entry being Entry No. 657 vide its order dated 14.11.1995.
2.6 Being dissatisfied with the order of the Mamlatdar mutating Entry No. 657, the petitioners approached Dy. Collector by preferring Appeal No. 19/95-96, which came to be dismissed on the Page 4 of 18 HC-NIC Page 4 of 18 Created On Sun Oct 01 22:35:59 IST 2017 C/SCA/10894/2000 JUDGMENT ground that the land was allotted under the Tenancy Act to Ganeshmal and the proceedings under Section 73AA of the Code are dropped. It is also held that in Regular Civil Suit No. 40 of 1992, no stay is granted and hence, appeal against the order dated 29.03.1995 is not maintainable.
2.7 The petitioners, therefore, preferred revision before the Collector, Bharuch, being Revision Application No. 38 of 1997, which too came to be dismissed on 04.08.1997.
2.8 The petitioners, thereafter, approached the Special Secretary Revenue Department ('the SSRD', for short) by filing Revision Application No. 53/97. The SSRD also dismissed the same vide order dated 03.10.2000, upholding the orders of the lower authorities. Hence, the present petition.
3.0 It is the grievance of the of the petitioners that the SSRD exceeded its jurisdiction and the revenue authority failed to appreciate that the pending litigation in respect of the substantial rights of the parties, mutation of the entry could not have been ordered. The petitioners also have severely challenged the right of Respondent Nos. 2 to 4 to Page 5 of 18 HC-NIC Page 5 of 18 Created On Sun Oct 01 22:35:59 IST 2017 C/SCA/10894/2000 JUDGMENT question the title in possession of the Ganeshmal Jashraj, who sold the said land to Hastimal, from whom the petitioners obtained the rights. It is also their grievance that no notice under Section 135D of the Code was given to them and the proceedings, which were initiated under Sections 73A and 73AA of the Code in the year 1990, were subsequently dropped.
3.1 Reliance, in this regard, is placed on a decision of this Court in 'RATILAL CHUNILAL SOLANKI AND OTHERS VS. SHANTILAL CHUNILAL SOLANKI AND OTHERS', 1996 (2) GLR 525 and it is urged that the entries are to be mutated after the final decree of the Civil Court concerned. No final decision, in the pending civil suit, has been taken, as yet. The challenge, after about 26 years, is also one of the major cause of the grievance. It is urged that the judgments rendered by this Court in 1994 (2) GCD 638 and 1997 (4) GCD 234 also support the case of the petitioners that the entry, which is mutated in the year 2001, cannot be cancelled after such a long time.
4.0 This Court on 20.02.2001, while issuing rule had granted interim relief in terms of Paragraph 15(B), on a condition that the petitioners shall not transfer, alienate or part Page 6 of 18 HC-NIC Page 6 of 18 Created On Sun Oct 01 22:35:59 IST 2017 C/SCA/10894/2000 JUDGMENT with the possession of the land in question or any part thereof nor shall they create a right in favour of a third party nor shall use the same for any other purpose, except, for agricultural purpose. The interim relief granted by this Court has continued till date, and therefore, the implementation and execution of the orders of the revenue authority has remained stayed till date.
4.1 After issuance of rule, the respondents appeared through their learned Advocates. However, none has chosen to file affidavit-in- reply, though, the petition has been resisted by them, strenously.
5.0 Learned Advocate, Mr. Patel, appearing for the petitioners has made his submissions along the line of the memo of the petition and has urged that the entry, which has been certified in favour of the petitioners, way back, after their purchase of the land in question by way of a registered sale deed dated 16.02.1970, could not, in any manner, be disturbed by Entry No. 657 dated 14.11.1995. He urged that the mutation of the entry in favour of respondents during the pendency of the civil litigation is, in no manner, justifiable and the SSRD committed a serious error in exercising of the powers not given to it under the Code. He, further, urged Page 7 of 18 HC-NIC Page 7 of 18 Created On Sun Oct 01 22:35:59 IST 2017 C/SCA/10894/2000 JUDGMENT that the entry, which had been mutated in the year 1970 could not be upturned after a period of about 26 years. He urged that the Regular Civil Suit No. 40 of 1992 ( New No. 27 of 1994) is pending and has not finally adjudicated.
6.0 Learned Advocate, Mr. Davawala, appearing for learned Advocate, Mr. Mathew, for Respective Nos. 2 to 4 urged that by virtue of the decision of this Court rendered in 'L.R. OF POPAT KHIMA RAMANI AND OTHERS. VS. COLLECTOR, RAJKOT AND OTHERS', 2003 (1) GLH 30, the mutation of the entry in the revenue record is reflecting in wake of the order of civil Court passed at interim stage. He fairly admitted that tenor of the record is misleading, but, the act of the revenue authority deserve no interference. He, however, agreed that the Suit, since, is pending for a long time, the parties shall cooperate and the Court may direct expeditious hearing of the Civil Suit.
7.0 Learned AGP, Mr. Parikh, submits that it is the well laid down law that the parties are bound to follow the decision of the Civil Courts, regarding the title of the property. Even the interim findings of the Civil Courts are required to be reflected in the revenue records and if, the revenue authority has made entry on the basis Page 8 of 18 HC-NIC Page 8 of 18 Created On Sun Oct 01 22:35:59 IST 2017 C/SCA/10894/2000 JUDGMENT of the order of the civil court, no interference is desirable.
8.0 Having heard both the sides, the question that arises for the consideration of this Court, whether the interference is desirable with the order of the revenue authority, which is impugned in this petition. The facts, which have been narrated herein above at Paragraphs-2.0 to 2.8, are not in dispute and therefore, they do not require reiteration. The only question, at this stage, is as to whether, the mutation of entry in wake of the interim order passed by the civil Court, without final adjudication of the matter, would warrant interference.
8.1 It is a well laid down law that the dispute with regard to the rights and title of the properties is within the exclusive domain of the civil courts and the revenue authority cannot decide the disputed question of rights and title of the land. The revenue authorities are required to mutate the entries in the mutation register, as per the decrees of the civil courts, after once the disputes are adjudicated finally by and between the parties.
8.2 This Court in 'RATILAL CHUNILAL SOLANKI
AND OTHERS VS. SHANTILAL CHUNILAL SOLANKI AND
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OTHERS' (Supra) was considering the question of issuance of notice under Section 135D of the Code to hold that the dispute as to the title of the properties mentioned in the revenue records when arises, the parties have to go to the civil Courts for resolving such disputes. The mutation proceedings cannot be converted into a battlefield for the said purpose, since, the revenue authority is incompetent to decide the disputed question of title to any property mentioned in any revenue record. This Court, further, observed and held that it is not merely a simple error of law which could not be corrected in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India in view of the binding ruling of the Apex Court in the case of 'MOHD. YUNUS VS. MODH. MUSTAQIM', AIR 1984 SC 38, and when an order is without authority or jurisdiction, it can certainly be interfered with, in a petition under Article 227 of the Constitution of India. The Apex Court, thereby, distinguished the binding ruling of the very Court on the said ground.
8.3 In the matter before this Court, the revenue authority has exceeded its limit by deciding the dispute question of title qua the land in question by accepting the alleged will Page 10 of 18 HC-NIC Page 10 of 18 Created On Sun Oct 01 22:35:59 IST 2017 C/SCA/10894/2000 JUDGMENT for the purpose of effecting mutation in the revenue record pertaining to the disputed land. Therefore, it held that the same would constitute an error of law on the face of the record.
8.4 It is not in dispute that the land in question has been transferred in favour of the petitioners by way of a registered sale deed dated 16.02.1970, after the said land was partitioned amongst Ganeshmal Jashraj and his brothers. The land bearing New Survey No. 246 was sold to one Hastimal, who happened to be the nephew of Ganeshmal. Ganeshmal was held to be the tenant of the said land and after payment of the price fixed by the Mamlatdar under the Tenancy Act, a certificate was issued to him.
It is not in dispute that the petitioner continued to enjoy ownership and possession of the land in question and in between, the inquiry initiated under Section 73A and 73AA of the Code came to be dropped on 29.01.1992.
8.5 There is civil litigation pending before the learned Civil Judge (J.D.), Jaghdiya, which was initially numbered as Regular Civil Suit No. 40 of 1992 and later on, it was renumbered as Regular Civil Suit No. 27 of 1994. Further, the initial order of status quo granted by the Civil Page 11 of 18 HC-NIC Page 11 of 18 Created On Sun Oct 01 22:35:59 IST 2017 C/SCA/10894/2000 JUDGMENT Court in favour of plaintiff-private respondent came to be vacated, after hearing both the sides, on 23.03.1995. Annexure-B to this petition reflects Entry No. 657, Dated: 14.11.1995, which is the cause of grievance and subject of challenge in this petition. It says that Regular Civil Suit No. 40 of 1992 when was instituted, the order was passed by the learned Civil Judge, directing the defendants not to enter the property in question and to maintain the status quo in respect of the said land. The interim order, initially, was granted on 20.10.1992. It is quite clear from this order that the authority recorded that by order dated 20.10.1992, the defendants were directed not to enter the suit land and to maintain status quo. However, after the trial, civil Court vacated the order of status quo granted on 20.10.1992 and dismissed the injunction application vide its order dated 29.02.1995, and therefore, the Entry No.657 came to be mutated on 12.12.1995.
This not only is an erroneous recording of the proceedings of the trial Court, but is misleading as well. This reflects, as if, Civil Suit No. 27 of 1994 had been adjudicated finally after the full fledged trial and the Civil Court concerned had chosen not to continue the interim relief granted in favour of the plaintiff.
Page 12 of 18 HC-NIC Page 12 of 18 Created On Sun Oct 01 22:35:59 IST 2017 C/SCA/10894/2000 JUDGMENT 8.6 This Court in 'L.R. OF POPAT KHIMA RAMANI AND OTHERS. VS. COLLECTOR, RAJKOT AND OTHERS' (Supra), once again reiterated the well laid down principle of law that the revenue
authorities are not to decide the questions of rights and title and the person claiming ownership can assert his ownership without getting his name entered into the revenue record. It also, further, held that the revenue authorities are bound to follow the decisions of the Civil Courts regarding the title of the properties. It also held that they are bound by the interim findings of the Civil Courts with a further direction that the revenue authorities to await the outcome of the Suits and to make entries on the basis of the final decree of the Civil Courts. It also held that the revenue authorities cannot assume the jurisdiction of the Civil Courts and cannot exercise the powers conferred under one enactment while dealing with a question under another enactment. The revenue authorities also cannot decide the question of title and the parties shall have to go before the competent Civil Court.
8.7 In the matter before this Court, Respondent had slept over her right for nearly 17 years for challenging the entry before the Asst.
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Collector, and therefore, he dismissed the same Further, there was another delay of two years in filing the appeal before the Collector against the order of the Asst. Collector. Considering the gross delay of more than 17 years, as, in the meantime, the land in question had been sub- divided and the construction had also come-up, this Court noted that the entry was sought to be challenged on the basis of a registered sale deed, but, on the basis of registered will and the registered adoption deed. This Court, therefore, while partly dismissing the petition, directed the revenue authorities to await the outcome of the Civil Court. It also directed the revenue authorities not to delete the entries made in favour of the contesting respondents and subsequent pruchasers in respect of the portion of the land in question so as not to affect the purchasers of those portion of the land, till the final outcome of the Civil Court. It also held that the revenue authorities, in RTS proceedings, are bound to follow the decision of the Civil Courts in regard to title of property.
8.8 This Court notices that the Entry No. 657 dated 14.11.1995, reflects the order of the Civil Court passed in Civil Suit No. 40 of 1992 with a clear mistake, as if, the same has been passed on final adjudication to that extent the Page 14 of 18 HC-NIC Page 14 of 18 Created On Sun Oct 01 22:35:59 IST 2017 C/SCA/10894/2000 JUDGMENT entry deserves correction.
8.9 It is also to be noted that the subsequent Entry No. 672 reflects that the appeal is allowed. The order dated 29.03.1995 passed by the learned Civil Judge (J.D.), Valia, below the interim application (Exhibit-5) in Regular Civil Suit No. 27 of 1994 is set aside and the petitioners (defendants) are temporarily restrained from dispossessing the private respondents (plaintiffs in the Suit) from the possession of the land till the final disposal of the suit. Since, there is no appeal or revision preferred against the said order, it is so far as the final interim order of the competent Court concerned. The challenge to these entries, i.e. Entry Nos. 657 and 672, except, as held herein above, do not warrant any interference. The authority concerned is required to be directed to make necessary amendment in the Entry No. 657 so that it does not become a misleading entry.
8.10 So far as the order impugned is concerned, learned Advocate, Mr. Patel, is right in contenting that the Revisional authority has exceeded its jurisdiction while giving the directions also to initiate the proceedings, which were dropped in the year 1992, under Sections 73A and 73AA of the Code in a challenge Page 15 of 18 HC-NIC Page 15 of 18 Created On Sun Oct 01 22:35:59 IST 2017 C/SCA/10894/2000 JUDGMENT against the order of the Dy. Collector and the Collector in respect of the entry registered in the name of the present petitioner by virtue of the registered sale deed effected in his favour in the year 1970 but also he has directed a separate proceedings to be initiated under Section 319 of the Code. At this stage, reference needs to be made to the decision of this Court in 'EVERGREEN APARTMENT COOPERATIVE HOUSING SOCIETY VS. SPECIAL SECRETARY, REVENUE DEPARTMENT, GUJARAT STATE', 1991 (1) GLR 113, where, this Court has held that the powers conferred under one enactment cannot be exercised while dealing with a question under another enactment. It also, further, emphasized that the powers of revision must be exercised within a reasonable time period. Thus, exceeding its jurisdiction by the SSRD, more particularly, in wake of the pendency of the civil proceedings before the competent Court by and between the parties deserve interference.
9.0 In the result, this petition is PARTLY ALLOWED. The impugned order dated 03.09/10.2000 passed by the SSRD is QUASHED and set aside, BARRING the confirmation / upholding of the order of the Collector, Bharuch, Dated: 04.08.1997, whereby, he upheld the order of the Dy. Collector, Dated: 30.09.1996.
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9.1 So far as the challenge made to the
first part of the order of the revisional
authority is concerned, whereby, it has upheld the order of the Collector, Dated: 04.08.1997, the challenge FAILS. However, the REST of the directions issued by the revisional authority in its order are, hereby, quashed and set aside.
9.2 The revenue authority shall not delete or cancel the subsequent entries being Entry Nos. 657, Dated: 14.11.1995, and 672, Dated:
18.09.1996, which shall be subject to the final OUTCOME of the pending proceedings. Although, the authority concerned shall AMEND the Entry No. 657 by deleting the words "after the trial" and by inserting the words "BY INTERIM ORDER".
9.3 It is, further, being clarified that either of the parties, if, makes an application for mutation of their names, for mutating any entry in respect of the land in question, the revenue authorities shall exercise its discretion only on the basis of the final determination of their rights and title by the competent civil Court.
9.4 Since, Regular Civil Suit No. 27 of 1994 is pending before the Court of the learned Civil Page 17 of 18 HC-NIC Page 17 of 18 Created On Sun Oct 01 22:35:59 IST 2017 C/SCA/10894/2000 JUDGMENT Judge (J.D.), Jaghadia, it shall be open to the either of the parties to make a request for expeditious proceeding of the Suit. If, any such application is made, the Court concerned shall attempt to adjudicate the disputes between the parties within a period of SIX MONTHS from the date of such application. Needless to say that in such an eventuality both the sides shall cooperate with the proceeding before the Court concerned. Rule is made absolute accordingly.
(MS SONIA GOKANI, J.) UMESH Page 18 of 18 HC-NIC Page 18 of 18 Created On Sun Oct 01 22:35:59 IST 2017