Gujarat High Court
Maheshbhai Dayalal Vadaliya vs Chief Secretary on 2 September, 2020
Equivalent citations: AIRONLINE 2020 GUJ 756
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/7854/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7854 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to see the NO
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 to NO
the interpretation of the Constitution of India or any order made
thereunder ?
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MAHESHBHAI DAYALAL VADALIYA
Versus
CHIEF SECRETARY
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Appearance:
MR.VIMAL PATEL, ADVOCATE for VMP LEGAL(7210) for the Petitioner(s)
No. 1
MR.K.M.ANTANI, AGP (8) for the Respondent(s) No. 1,2,3,4
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CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 02/09/2020
CAV JUDGMENT
1. RULE returnable forthwith. With the consent of the learned advocates for the respective parties, the petition was taken up for final hearing on 26.08.2020 and the matter was reserved for judgement. Learned AGP Mr.K.M. Antani waives service of notice of Rule for the respondent-State.
Page 1 of 14 Downloaded on : Thu Sep 03 00:22:44 IST 2020 C/SCA/7854/2020 CAV JUDGMENT2. The petitioner has filed the petition under Article 226 and 227 of the Constitution of India challenging the orders dated 22.08.2019, 04.06.2019 and 28.12.2018 passed by the Secretary (Appeals) who confirmed the order of the Collector and the Deputy Collector respectively, thereby not mutating the entry in the property card in respect of the sale deed dated 31.08.1991 of the land purchased by the petitioner from one Umakant Pandit.
3. The facts in brief are as under:
3.1 It is the case of the petitioner that the land admeasuring 13,333-1/9 sq.yards situated at Rajkot Civil Station No. 868, was given on perpetual lease by the Secretary of State for India in Council to one Mr. Ghanshyam Pandit. This was done by a lease deed dated 21.08.1931. Mr. Ghanshyam Pandit expired intestate on 10.04.1938. A partition deed was entered into on 04.11.1958 by which, land admeasuring 6667 sq. yards went to the share of Keshavlal Ghanshyam Pandit and the same area of land came to the share of Prabhakar Ghanshyam Pandit.
3.2 A partition took place amongst the members of Prabhakar Ghanshyam Pandit and land admeasuring 2346 sq.yards equivalent to 1962.85 sq.meters came to the share of Umakant Pandit. The name of Umakant Pandit was mutated in the property card since 1968.
3.3 The case of the petitioner is that plot no.B admeasuring 522.85 sq.meters was sold by Umakant Pandit to the petitioner by a sale deed of 31.08.1991, registered at Sr. No.11178. Similarly plot Page 2 of 14 Downloaded on : Thu Sep 03 00:22:44 IST 2020 C/SCA/7854/2020 CAV JUDGMENT no.B was sold to one Vanshiro Constructions by a sale deed dated 19.04.2003 and Vanshiro Construction's name was mutated in the property card on 13.10.2003. The case of the petitioner is that he being the owner of the land by virtue of the sale deed entered into between Umakant Prabhakar Pandit and himself in 1991, on an application made his name ought to have been mutated in the Revenue records.
3.4 The case of the petitioner is that on 11.07.2016, the petitioner gave an application to mutate his name in the property card in view of the sale deed of 1991. The City Survey Superintendent informed him to pay revenue cess, which was accordingly paid, however, on 19.08.2016, the City Survey Superintendent rejected the application of the petitioner for mutating his name in the revenue record on the ground that since the land was a leasehold land of B- 1 nature, prior permission would necessarily have to be obtained and without such permission, the name of the petitioner cannot be mutated in the land records.
3.5 Aggrieved by the order of 19.08.2016, the petitioner filed appeal case no.167 of 2016 before the Deputy Collector. The Deputy Collector dismissed the appeal on 28.11.2018. Aggrieved by the order of the Deputy Collector dated 28.11.2018, the petitioner preferred an appeal being Appeal Case No.2 of 2019 before the Collector which also rejected his appeal on 04.06.2019. Against that order, the Revision Case No.103 of 2019 was filed which was rejected by an order dated 22.08.2019.
3.6 Aggrieved by these orders, the petitioner has approached this Page 3 of 14 Downloaded on : Thu Sep 03 00:22:44 IST 2020 C/SCA/7854/2020 CAV JUDGMENT Court.
4. Mr. Vimal Patel, learned counsel for the petitioner would submit as under:
4.1 The respondents overlooked the fact that under the proviso to Section 135C of the Revenue Code, the petitioner was exempted from an obligation to report to the respondent the acquisition right by virtue of the sale deed and it was the duty of the concerned officer to give an intimation and enter the transfer of rights in the register of mutation.
4.2 The fact that the permission was necessary was a ground that was illegal and therefore, the orders are bad.
4.3 He would assail the orders on the grounds of they being violative of Article 14 of the Constitution of India on the ground that the other portion of the land which was purchased by Vanshiro Constructions which was also in the nature of B-1 category and was given Survey No. 2408/C had its name mutated in the Revenue record.
4.4 Mr.Vimal Patel would submit that the land in question was given on a permanent lease under the lease deed dated 21.08.1931 which was taken on lease by the predecessor in title of the petitioner. The property card was prepared in the year 1968 showing the name of Shri Umakant Pandit from whom the petitioner had purchased the land in the year 1991. The petitioner was in possession for the last 28 years and therefore the respondents were bound to mutate the Page 4 of 14 Downloaded on : Thu Sep 03 00:22:44 IST 2020 C/SCA/7854/2020 CAV JUDGMENT name of the petitioner.
4.5 Mr.Patel would submit that the orders are without authority of law.
4.6 In the course of his arguments, Mr.Patel has extensively taken this Court to the indenture of 1931 dated 21.08.1931 between the Secretary of the State for India in Council on one part and Mr. Mr.Ghanshyam Pandit on the other part. He would submit that lease deed was entered after sanction of the officer in charge of the Rajkot Civil Station. Inviting my attention to page 26-E, he would submit that there was a clause in indenture that in the event of the death of the lessee any person acquiring the right to the land by succession, survivorship or inheritance or in the event of transfer by lessee of any interest in the land by sale, gift, mortgage or exchange, the transferee shall give notice in writing to the officer in charge of the Civil Station. Mr. Patel would also invite the attention of the Court to the entries especially on page 92 thereof to suggest that it was undisputed that Umakant Prabhakar Pandit was the owner and in possession of the land and by virtue of the sale deed of 1991, the petitioner as a purchaser was entitled to have his name mutated in the revenue records.
4.7 Mr.Patel in support of his submissions relied on the decision of this Court in case of Dahyabhai Chhitubhai Rathod & Anr v. State of Gujarat Thro Secretary & Others dated 28.02.2020 passed in Special Civil Application No.8618 of 2011. Mr.Patel would rely on paragraphs 7 and 8 of the decision, which extensively quoting Sections 135-C of the Land Revenue Code would indicate that the observation of the Collector that there were no steps taken for 34 Page 5 of 14 Downloaded on : Thu Sep 03 00:22:44 IST 2020 C/SCA/7854/2020 CAV JUDGMENT years were quashed and set aside by the Court and therefore, on the facts of the case also the judgment would be applicable. The relevant paragraphs of the judgment read as under:
"7. Section 135C of the Code provides for reporting of acquisition of rights 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 acknowledgement of the receipt of such report to the person making it. Second proviso to section 135C envisages that any person acquiring the right by virtue of a registered document shall be exempted from the obligation to report to the designated officer.
8. Clearly, if any person acquires the right on any land inter alia by succession, survivorship, inheritance etc. then it is incumbent upon that person to make a report of such acquisition of such right either manually or electronically to the designated officer. As per the said provision, the obligation is on the person to report acquisition of such right within the period of three months from the date of such acquisition and further obligation on the designated officer to give written acknowledgement of the receipt of such report to the person making it. However, exception has been carved out in favour of any person acquiring right by virtue of registered document inasmuch as, the person is exempted from the obligation of reporting such acquisition. ...
...
13. Thus, the principle which has been laid down in the aforesaid judgments is that second proviso to section 135C, exempts the person concerned who has acquired the right by virtue of registered document from the obligation to report to the designated officer the acquisition of right and that the obligation is on the revenue authorities to take suo motu note of the transaction on account of its registration Page 6 of 14 Downloaded on : Thu Sep 03 00:22:44 IST 2020 C/SCA/7854/2020 CAV JUDGMENT according to the Indian Registration Act, 1908 and shall mutate the transaction in the revenue record. Clearly, party acquiring right through registered document is exempted from the obligation of reporting the acquisition of the right to the designated officer and hence, there does not arise any question as regards the limitation, for taking steps for reporting the acquisition of the right to the designated officer. In the present case, undisputedly, pursuant to the decree dated 28.1.1971, a release deed dated 27.5.1974 came to be executed in favour of the petitioners which was duly registered with the office of the Sub-Registrar, Bardoli. Under the circumstances, by virtue of second proviso to section 135C of the Code, and as held by this court in the case of Nathubhai Meraman Darji (supra), the Village Accountant was required to take note of the transaction registered under the provisions of the Indian Registration Act, 1908 for the purpose of its mutation in the concerned revenue record.
...
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18. Apparently, the contents of the order dated 16.7.2009 passed by the Collector, Vyara clearly suggests that the Collector also did not consider the effect of proviso to section 135C of the Code which as aforesaid, does not obligate the party to report the acquired right by virtue of the registered document. The Collector clearly erred in observing that the petitioners have not taken any steps in furtherance of the registered release deed dated 27.5.1974 despite the expiry of 34 years. What has been lost sight of by the Collector is that as per the second proviso to section 135C, it was the obligation of the Village Accountant to have mutated the names of the petitioners in the revenue record on the basis of the release deed dated 27.5.1974, which was very much registered with the office of the Sub- Registrar, Bardoli. Since there was no obligation on the part of the petitioners to have reported the acquisition of the right to the Village Accountant, there arises no question of the petitioners having not taken any steps in furtherance of the registered release deed dated 27.5.1974; however, when the registered document was before the authorities, it was rather incumbent upon the authorities to have taken cognizance for the purpose of its mutation in the revenue record."Page 7 of 14 Downloaded on : Thu Sep 03 00:22:44 IST 2020 C/SCA/7854/2020 CAV JUDGMENT
4.8 He also relied on the decision in Special Civil Application No.5464 of 2014 in the case of Balvantrai Ambaram Patel v. State of Gujarat and Ors. in support of his submission that qua a claim for mutation made by a person in the capacity of the owner of the sale deed, it was obligatory on the part of the authorities to mutate the name of the person in the Revenue records. He relied on paras 5.3 to 5.5 of the decision which read as under:
"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) 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 Page 8 of 14 Downloaded on : Thu Sep 03 00:22:44 IST 2020 C/SCA/7854/2020 CAV JUDGMENT 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."
5. Mr.K.M.Antani learned AGP supported the orders passed by the authorities below i.e. the Deputy Collector, the Collector and the Special Secretary and submitted as under:
5.1 The findings of the Special Secretary that there was no reason to find fault with the authorities based on the fact that the request for registering an entry pursuant to a sale deed of 1991 was made after 25 years in the year 2016. However, the orders of the Deputy Collector and the Collector as per the opinion of the Special Secretary, which opined that since the land was on lease, prior permission was necessary, was an order in accordance with law.
5.2 Mr.K.M.Antani in support of his submissions relied on a decision in the case of State Of Maharashtra vs Digambar reported in (1995) 4 SCC 683. He would submit that by virtue of undue delay and laches, any person would not be entitled to relief against anybody, especially a State. Support was canvassed on the basis of Page 9 of 14 Downloaded on : Thu Sep 03 00:22:44 IST 2020 C/SCA/7854/2020 CAV JUDGMENT the judgment, especially para 13 and 14 thereof which read as under:
"13. The said view taken by the High Court that the ground of laches or undue delay on the part of a citizen does not disentitle him to obtain relief under Article 226 of the Constitution, when his claim for relief is based on deprivation of his property by the State or its agencies has since made it (High Court) to grant relief to the respondent in this appeal and other similarly situated, sustainability of such view requires our examination in this appeal.
14. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State by invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decisions of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other Page 10 of 14 Downloaded on : Thu Sep 03 00:22:44 IST 2020 C/SCA/7854/2020 CAV JUDGMENT person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State."
5.3 He also relied on a decision in case of Chandigarh Administration and Anr. v Jagjitsinh and Anr. reported in 1995 (1) SCC 745 in support of his submission that Article 14 cannot be pressed into service merely on the basis of similar nature of the order passed, as canvassed by Mr.Patel in the case of Vanshiro Construction. A previous administrative order cannot become a precedent.
6. Having considered the submissions made by the learned advocates for the respective parties, the following undisputed facts emerge.
A. The case of the petitioner is that he purchased the land in question by a sale deed dated 31.08.1991. For the first time, it was only on 11.07.2016 that a request was made by the applicant/petitioner to mutate the entries in his favour in the revenue records.
B. Nothing in the petition is explained as to why an application for Page 11 of 14 Downloaded on : Thu Sep 03 00:22:44 IST 2020 C/SCA/7854/2020 CAV JUDGMENT such mutation of entry was made 25 years after the sale deed of the year 1991.
C. On the question of comparison of the action of the authorities and asking for a similar relief in the context of Vanshiro Construction, on facts what is found is that in the case of Vanshiro Construction admittedly, the sale deed was entered into by Vanshiro Construction on 19.04.2003. Within 6 months from the date of the deed, Vanshiro Construction, on 13.10.2003 made an application for entering the name in the Revenue records. It was therefore entered into the revenue records on an application made promptly on the basis of such an application made within 6 months from the date of the sale. Parity cannot be claimed and in absence of any application coming forth as to why the petitioner sat over the issue for 25 years will definitely be a circumstance examined by the Special Secretary and in the opinion of the Court rightly so in confirming the order passed against the petitioner by the Collector and the Deputy Collector respectively.
D. On the question of the decisions rendered by this Court in the case of Dahyabhai Chhitubhai Rathod (supra) in Special Civil Application No.8618 of 2011, the facts of the case on hand before that Court would indicate that the question of mutating the entries was based on the succession between the parties and the possession of the last person on the basis of a release deed in favour of the petitioner. On the question of holding of the land and the nature of of such holding of land, there was no controversy. There cannot be dispute on the issue of the law decided by the Court in the case of Dahyabhai Chhitubhai Rathod (supra) inasmuch as, the Page 12 of 14 Downloaded on : Thu Sep 03 00:22:44 IST 2020 C/SCA/7854/2020 CAV JUDGMENT provisions of Section 135C make it incumbent upon the officers of the revenue department to register an entry and the obligation of the concerned purchaser / holder of the land would stand discharged. However, in the facts of the present case what is evident from reading the first order of the City Survey Superintendent dated 19.08.2016 is that the authorities have found that the land in question is a long leasehold land and therefore, without prior permission thereof, the petitioner's purchase couldn't have happened. It is in these circumstances that in the opinion of this Court the judgment cited by the learned counsel for the petitioner would have no application on the facts of the case.
E. In the case of Digambar (supra) the Supreme Court as is evident from the reproduction of paragraphs 13 and 14 hereinabove would indicate that anyone who is guilty of delay and latches which is not explained, cannot then plead that he is relieved of his obligation to overcome such a conduct of delay and laches. A person who is otherwise guilty of being lethargic and not applying for a prompt relief, cannot get the benefit from the concerned authorities and also from this Court when it is exercising powers under Article 227 of the Constitution of India.
7. On the facts of the case when the authorities below all have found that there is no explanation coming forth why the petitioner though having acquired the land by sale deed of 1991, did not come forth and make an application for mutation of entry for a period of 25 years, is a circumstance that has gone against the petitioner. Such a finding arrived at by the authorities below cannot be faulted and the petition would stand dismissed. Petition is accordingly dismissed. Rule is Page 13 of 14 Downloaded on : Thu Sep 03 00:22:44 IST 2020 C/SCA/7854/2020 CAV JUDGMENT discharged.
(BIREN VAISHNAV, J) ANKIT SHAH Page 14 of 14 Downloaded on : Thu Sep 03 00:22:44 IST 2020