Gujarat High Court
Balvantrai Ambaram Patel vs State Of Gujarat & 2 on 8 May, 2014
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/5464/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5464 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
================================================================
1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
================================================================
BALVANTRAI AMBARAM PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
================================================================
Appearance:
MS RENISHA R VYAS, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 08/05/2014
ORAL JUDGMENT
Rule. Learned Assistant Government Pleader Page 1 of 9 C/SCA/5464/2014 JUDGMENT Mr.Rahul Dave waives service of notice of Rule. In the facts and circumstances of the case and with request and consent of both the learned advocates, the petition is taken up for final consideration making Rule returnable forthwith.
2. By filing this petition under Article 226 of the Constitution, the petitioner has prayed to set aside order dated 04.02.2014 at Annexure-A, of the Mamlatdar. Thereby the said authority has refused to enter the name of the petitioner in the revenue records. It is further prayed to issue direction to respondent No.3-Mamlatdar to enter petitioner's name in the revenue records in respect of land bearing Block No.660, situated at Village Nandroi, Taluka- Olpad, District-Surat on the basis of the registered sale deed dated 06.01.2006. By virtue of the said sale deed, the petitioner purchased the land in question and claimed mutation of his name as an owner thereof.
3. Highlighting the facts pleaded in the petition, learned advocate Mr.Asim Pandya with Ms.Renisha R. Vyas submitted that the subject matter land came to be purchased by the petitioner by a registered sale deed from one Durlabhbhai Kikabhai and one Dayalbhai Kikabhai. It was their self-acquired property. Petitioner obtained certificate from the competent authority about his agriculturist status on 31.05.2007. As it was noticed that the land was encumbered, the encumbrance was removed. The discharge of encumbrance entry was certified on 27.08.2007. On 18.09.2007 the petitioner applied for posting of the Page 2 of 9 C/SCA/5464/2014 JUDGMENT mutation entry on the basis of the sale deed under which he has purchased the land, but his application was returned. In the impugned order at Annexure-A, Mamlatdar required that the petitioner needed to obtain consent letters before his name as an owner of the land on the basis of registered sale deed could be mutated. The aggrieved and dissatisfied petitioner accordingly filed this writ petition.
3.1 It is to be noted that the predecessor Durlabhbhai who was one of the executors of the sale deed died on 22.03.2007. His legal heirs applied for posting of a mutation entry on the ground that they had received the land in succession. The entry was mutated and it was certified also on 19.11.2007. Learned advocate for the petitioner submitted that mutation and certification in favour of the heirs of Durlabhbhai was permitted despite the fact that application of the petitioner was pending. On 17.09.2007, petitioner once again gave an application.
4. Learned advocate for the petitioner submitted that it was incumbent in law for the Mamlatdar to mutate the name of the petitioner who had purchased the land by a registered sale deed. Learned advocate relied on relevant provisions of the Bombay Land Revenue Code, 1879, more particularly Sections 135-C and 135-D. On the other hand, learned Assistant Government Pleader supported the stand of the authorities and submitted that without obtaining the consent letter of the persons whose names were figuring in the Village Form, the name of the Page 3 of 9 C/SCA/5464/2014 JUDGMENT petitioner could not be permitted to be entered.
5. The relevant provisions of law on being looked into, there is a considerable substance in the submission of the learned advocate for the petitioner. Chapter X-A of the Code deals with the record of rights. While Section 135-A is an exemption from the provisions of the Chapter, Section 135-B speaks of record of rights, providing inter alia that a record of rights shall be maintained in the format as a manually or electronically or in both formats prescribed for the village or city survey area, as the case may be. In such record of rights, it is provided further, that the names of all persons other than tenants who are the holders, occupants, owners or mortgagers of the land and the categories of persons mentioned in (a) to (d) shall be entered. Section 135- C deals with acquisition of rights to be reported. Section 135-D is about register of mutations and register of disputed cases.
5.1 Section 135-C reads as under:
"Acquisition of rights to be reported: 135C. Any person acquiring the right on any land by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise any right as holder, occupant, owner, mortgagee, assignee of the rent thereof, shall make a report of such acquisition of such right, either manually or electronically, to the designated officer within the period of three months from the date of such acquisition, and the said designated officer shall at once, give a written acknowledgment of the receipt of such report to the person making it:
Provided that where the person acquiring Page 4 of 9 C/SCA/5464/2014 JUDGMENT the right is a minor, pr otherwise disqualified, his guardian or other person, having charge of his property, shall make the report to the designated officer:
Provided further that any person acquiring a right by virtue of a registered document shall be exempted from the obligation to report to the designated officer.
Explanation I. - The rights mentioned above include a mortgage without possession, but do not include an easement or a charge not amounting to a mortgage of the kind specified in Sec. 100 of the Transfer of Property Act, 1882.
Explanation II. - A person in whose favour a mortgage is discharged or extinguished, or lease determines, acquires a right within the meaning of this section.
5.2 Section 135-D reads as under:
"Register of mutations and register of disputed cases: 135D. (1)(a) The designated officer shall enter, manually or electronically by the automated process, in a register of mutations, every report made to him under Sec. 135-C or any intimation of acquisition or transfer of any right on land made to him, either manually or electronically under Sec. 135-C from the Mamlatdar, or a court of law.
(b)(i) When a claim or document of rights is produced before the designated officer, he shall, through bio-metric ID or any other mode as may be prescribed, verify the identity and the lawful rights of the transferor and the transferee.
(ii) Upon completion of verification, the necessary entries shall be made in the register of mutations in the manner as may be prescribed and the notice of the transaction under Sec.
135-D shall be served to the persons interested therein.
Page 5 of 9C/SCA/5464/2014 JUDGMENT (2) Whenever a designated officer makes an entry, either manually or electronically in the register of mutations, he shall at the same time intimate to all persons appearing from the record of rights or register of mutations to be interested in the mutation and to any other person whom he has reason to believe to be interested therein in the manner as may be prescribed.
(3) It shall be the duty of the designated officer to enter the particulars of the objection if any received from any person either manually or electronically, in a register of disputed cases and to give written acknowledgment of the receipt of such objection to the person making it in the same manner..
(4) Orders disposing of objections entered in the register of disputed cases shall be recorded, either manually or electronically, in the register of mutations, after disposing it within the period as may be prescribed for this purpose and the same may be intimated to the concerned person having interest in the said mutation.
(5) Where no objection is raised by any person having interest in the transaction, either manually or electronically, within a period of thirty days, the mutation entry shall be certified electronically through an automated process or manually, as the case may be.
(6) The transfer of entries from the register of mutations to the record of rights shall be effected subject to such rules as may be made by the State Government in this behalf:
Provided that an entry in the register of mutations shall not be transferred to the record of rights until such entry has been duly certified.
(7) ... ... ...
(8) ... ... ...Page 6 of 9
C/SCA/5464/2014 JUDGMENT
(9) ... ... ..."
5.3 As per Section 135-C of the Code extracted
above, any person who acquires right on any land or is able to assert right of occupancy, ownership, mortgage, etc., it is provided that he shall make report to the designated officer. Second Proviso to the provision is material for the purpose of the case on hand, which says that any person acquiring a right by virtue of a registered document is exempted from the obligation to make report to the designated officer. The said Proviso in other way recognizes the legal effect of a registered document by virtue of which a person may have purchased the land. He will be then able to assert his right as owner by virtue of the registered sale deed itself from which, for him all incidences of ownership would flow. Therefore once there is a registered document of sale of land, the purchaser would be entitled to get his name mutated in the revenue records on that basis.
5.4 Section 135-D contemplates verification of the report made to him under Section 135-C. Various provisions of Section 135-D envisage the procedure for verification and making of necessary entries in the register of mutations as well as certification thereof. Sub-section (2) provides for intimation to all persons appearing on the record of rights and who are interested in the mutation. The designated officer is required to intimate them and receive objections, if any, from such person. Sub-section (4) provides for orders disposing of the Appeals. Sub-section (5) Page 7 of 9 C/SCA/5464/2014 JUDGMENT provides that where no objection is raised within a prescribed period of 30 days, the mutation entry shall be certified.
5.5 A conjoint effect of aforesaid provisions is that in cases of a claim made for mutation by a person in capacity of owner on the basis of registered sale deed, the designated officer is bound to enter his name as having purchased the land by lawful mode of transfer. As already noticed, a person purchasing the land by registered sale deed is not supposed to make a report to the designated officer for the purpose of entries in the revenue records, as is contemplated in relation to other cases. The working of the provisions of Sections 135-C and 135-D obtained a position that a mutation entry has to be made by the designated officer on the basis of the registered document, in the instant case, a document of sale. After making mutation entry in favour of such person recognizing his claim on the basis of registered document, the designated officer thereafter may follow the procedure under Section 135-D, implying that the competent officer may subsequently deal with the objections received and dispose of the same in accordance with the provisions of sub-sections of Section 135-D.
6. Therefore in all cases of claims for mutation based on a registered document, the competent officer has to be entered the name of the claimant- owner-right holder. The authority cannot insist for observing the requirements of Section 135-D apriori and on that basis declined to enter the name in the Page 8 of 9 C/SCA/5464/2014 JUDGMENT revenue records. The designated officer in charge of the said function has no jurisdiction to disregard the legal effect of the registered document, and he cannot be permitted to do so even indirectly. Once the petitioner purchased the land in question by virtue of registered sale deed, he is entitled to have his name mutated in the revenue records. The reasons given in the impugned order dated 04.02.2014 of the Mamlatdar for not mutating the entry and insisting for consent letters, etc., have no sanction of law and they do not hold good in light of the statutory provisions noted above.
6.1 Accordingly this petition is allowed. The order dated 04.02.2014 of respondent No.3-Mamlatdar (copy produced at Annexure-A with the petition) is hereby set aside. It is directed that respondent No.3 shall follow the mandate of Section 135-C with regard to request of the petitioner. It is simultaneously observed that the said authority shall be at liberty to undergo and comply with the provisions of Section 135-D in the event necessary.
7. Rule is made absolute accordingly.
(N.V.ANJARIA, J.) Anup Page 9 of 9