Gujarat High Court
Khalapbhai @ Khimjibhai Bhanabhai ... vs District Collector & 5 on 13 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/12518/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12518 of 2017
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KHALAPBHAI @ KHIMJIBHAI BHANABHAI BAROT & 4....Petitioner(s)
Versus
DISTRICT COLLECTOR & 5....Respondent(s)
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Appearance:
MR PRABHAKAR UPADYAY, ADVOCATE for the Petitioner(s) No. 1-5
MS NISHA THAKORE, AGP for the Respondent - State
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 13/09/2017
ORAL ORDER
By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated 27th April 2017 passed by the SSRD at Ahmedabad, by which the SSRD rejected the revision application filed by the applicants herein, thereby affirming the order of the Collector, Valsad, dated 30th October 2015.
The SSRD, in the impugned order, held as under :
"Considering the above facts, submission of the parties, order of the Collector and the records of the lower court, it appears that immediately before the said land was vested with the Government, it has been re-granted to Jivanbhai Morarbhai and three other persons who were occupants and whose names were on record. Since the Page 1 of 4 HC-NIC Page 1 of 4 Created On Sun Oct 01 19:59:22 IST 2017 C/SCA/12518/2017 ORDER applicants were not the legal occupants at that time, there was no question of re-granting the land to them. As the land in question was re-granted to Jivanbhai Morarbhai and three other persons, they had become its legal occupants. If it is believed that as per the records of Register 'A' of the year 1897, the applicants had been occupants of the land in question, and they had its ownership rights, but when the land was vested with the Government by the Deputy Collector for violation of condition, their ownership rights on the said land came to an end. Therefore, on the grounds of such revenue records, they cannot claim their ownership rights on the land in question. It appears on considering the mutation entry no.1414 dated 08/05/1961 that as the occupant of the said land Morar Kanji passed away, the names of his direct heirs : Bai Revaben, widow of the deceased, two sons Jivanbhai and Dhirubhai and daughter Rukhiben were entered through their heirship rights. At that time also, the applicants had neither made any claim for entering their names in the land records through heirship rights nor raised any objection or preferred any application. Similarly, after the death of Jivan Morar on 09/07/1996, against mutation entry no.5219 of heirship dated 11/03/1999 which was even certified, the applicants have not raised any objection. It appears from the same that later on they have made this claim that they have the ownership right by virtue of their heirship rights on the said land, which cannot be accepted. Considering the mutation entry no.5600 dated 30/05/2001, it appears that it is not an entry in connection with heirship, but it has been made on the Page 2 of 4 HC-NIC Page 2 of 4 Created On Sun Oct 01 19:59:22 IST 2017 C/SCA/12518/2017 ORDER grounds of the possession and occupancy. Out of the 4 occupants of the said land in question, the consent has been taken on the stamp paper from only one occupant Dhirubhai Morarbhai and no consent from rest of 3 occupants has been taken. Since the document of Dhirubhai giving consent has not been registered, it is not acceptable as evidence. Therefore, the said impugned mutation entry no.5600 is not valid. The document has to be registered. As per the provision of section-34 of the Bombay Stamp Act, 1958, if proper stamp has not been affixed on any document, it cannot be acceptable as the evidence and accordingly the mutation entry cannot be made from it. Therefore, since the impugned entry no.5600 has been made in absence of any document, it is not legal. The finding of the Collector is proper that the effect has not been given of the mutation entry no.2383 dated 29/04/1980 under the order from the Assistant Collector directing to re-grant the land on new tenure, which is necessary to be given. Because, the said land has been re-granted to the heirs whose names were on record just prior to being vested by the Government. The applicant was not the legal occupant on record, at the relevant time. The applicant has sought for the ownership right on the grounds of possession. But, as the Deputy collector vested the land with Government for violation of condition, their rights came to an end. The mutation entries 1414 and 5219 are regarding heirship, the same have not been challenged at the relevant time. The provision of the Registration act is required to be taken into consideration that ownership right cannot be granted on the grounds of possession Page 3 of 4 HC-NIC Page 3 of 4 Created On Sun Oct 01 19:59:22 IST 2017 C/SCA/12518/2017 ORDER and no right arises without any registered document. Thus, considering the records produced by the parties, since the revision application of the applicants is not acceptable, the following order is hereby passed."
Thus, it appears from the reasonings recorded by the SSRD that at no point of time mutation entry no.1414 dated 8th May 1961 came to be questioned nor the mutation entry no.5219 dated 11th March 1999 came to be questioned.
The applicants seek to restore the position prevailing some time in the year 1956.
Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that no error, not to speak of any error of law, could be said to have been committed by the revenue authorities in passing the impugned orders. No interference is warranted in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India.
This petition is, accordingly, rejected.
It is always open for the applicants to initiate appropriate civil proceedings before the competent civil court in accordance with law.
(J.B.PARDIWALA, J.) MOIN Page 4 of 4 HC-NIC Page 4 of 4 Created On Sun Oct 01 19:59:22 IST 2017