Anilbhai Rambhai Bharwad & vs Mamlatdar (EDhara) on 17 March, 2017

[Cites 4, Cited by 0]

Gujarat High Court

Anilbhai Rambhai Bharwad & vs Mamlatdar (EDhara) on 17 March, 2017

Bench: Abhilasha Kumari

                     C/SCA/10255/2016                                                 JUDGMENT




                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      SPECIAL CIVIL APPLICATION  NO. 10255 of 2016

          
         FOR APPROVAL AND SIGNATURE: 
          
         HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
         =========================================================

             1  Whether Reporters of Local Papers may be allowed to see 
                the judgment ?                                                                      No

             2  To be referred to the Reporter or not ?
                                                                                                    No
             3  Whether   their   Lordships   wish  to   see   the   fair   copy   of   the 
                judgment ?                                                                          No

             4  Whether this case involves a substantial question of law as 
                to   the   interpretation   of   the   Constitution   of   India   or   any         No
                order made thereunder ?

         =========================================================
                 ANILBHAI RAMBHAI BHARWAD  &  1....Petitioner(s)
                                     Versus
                   MAMLATDAR (EDHARA),  &  1....Respondent(s)
         =========================================================
         Appearance:
         MR TATTVAM K PATEL, ADVOCATE for the Petitioner(s) No. 1  2
         MR VISHRUT R JANI AGP for the Respondent(s) No. 1  2
         =========================================================

             CORAM:  HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
          
          Date : 17/03/2017
          
         ORAL JUDGMENT

1. Rule. Mr. Vishrut Jani, learned Assistant Page 1 of 9 HC-NIC Page 1 of 9 Created On Mon Aug 14 13:33:58 IST 2017 C/SCA/10255/2016 JUDGMENT Government Pleader waives service of notice of Rule for the respondent.

2. This petition under Articles 226 and 227 of the Constitution of India has been preferred, with the following prayers:

"(a) admit/allow present petition;

(b) issue a writ of mandamus or any other appropriate writ, order or direction in nature of mandamus by directing Revenue Authority to mutate necessary entry recording Judgment passed by the Civil Court in Regular Civil Suit No.511/2001 dated 09.05.2006 and also mutate necessary entry recording registered sale deed dated 23.05.2006;

(c) to mutate necessary entry recording Judgment passed by the Civil Court in Regular Civil Suit No.511/2001 dated 09.05.2006 and also mutate necessary entry of regarding registered sale deed executed pm 23.05.2006 pending admission, hearing and final disposal of present petition;

(d) Grant such other and further relief as may be deem fit, just and proper, in the facts and circumstances of the case."

3. The issue involved in the petition lies in an extremely narrow compass and relates to the implementation of the procedure as per the settled position of law, therefore, the Court proposes to decide this petition finally, with the consent of Page 2 of 9 HC-NIC Page 2 of 9 Created On Mon Aug 14 13:33:58 IST 2017 C/SCA/10255/2016 JUDGMENT learned counsel for the respective parties.

4. The case of the petitioners, in brief, is that land bearing Survey No.850 of village Makarba, Taluka Vejalpur, District Ahmedabad (the land in question) was originally the subject matter of Regular Civil Suit No.511/2001, instituted by the heirs of Khodaji Detarji against the State Government, for adverse possession. By a judgment and decree dated 09.05.2006, the Civil Court allowed the suit, declaring the plaintiffs to be the owner of the land in question by adverse possession. Thereafter, the plaintiffs/owners of the land entered into a sale transaction regarding the land in question with the petitioners and a registered Sale Deed dated 23.05.2006 was executed between the parties. It is the case of the petitioners that the respondents were duty bound by law to post the entry of the decree of the Civil Court as well as the registered Sale Deed in the revenue record. However, no such entries came to be posted. Initially the petitioners made several oral requests to the respondents to post the necessary entries. However, as no entries were posted, a representation came to be Page 3 of 9 HC-NIC Page 3 of 9 Created On Mon Aug 14 13:33:58 IST 2017 C/SCA/10255/2016 JUDGMENT made by the petitioners to the respondent on 15.10.2015. Thereafter, on 20.10.2015 and 30.01.2016, another representations came to be made by the vendors requesting the respondents to post the necessary entries. Still, however, the said entries were not posted. Hence, the petitioners have approached this Court.

5. Mr. Tattvam K. Patel, learned advocate for the petitioners has submitted that the revenue authorities are bound, by law, to post and certify the necessary mutation entries regarding the judgment and decree passed by the Civil Court as well as the execution of the registered Sale Deed in the revenue record. It is further submitted that under the provisions of the Gujarat Land Revenue Code, 1879 ("the Code", for short) as well as the Gujarat Land Revenue Rules, 1972 ("the Rules", for short), it is the duty of the respondents authorities to mutate the necessary entries on its own. In the present case, the respondents authorities have failed to discharge its statutory duties, therefore, the petitioners made several representations reminding them to discharge Page 4 of 9 HC-NIC Page 4 of 9 Created On Mon Aug 14 13:33:58 IST 2017 C/SCA/10255/2016 JUDGMENT their statutory obligations. Due to the inaction on the part of the respondents, the petitioners have been constrained to approach this Court, seeking the necessary directions.

6. In support of the above submissions, reliance has been placed upon a judgment of this Court in the case of Nathubhai Meraman Darji Vs. Special Secretary (Appeals), reported in 1996 (3) GCD 691, wherein this Court has held as below :

"8. As pointed out hereinabove, respondent No.3 has set aside the entry at Annexure A to the petition only on the ground that no notice under Sec.135D of the Code was served to the deceased before effecting mutation in the revenue record on the basis of the registered sale transaction. In this connection, a reference deserves to be made to Sec.135C of the Code. It has been provided therein that any person acquiring interest inter alia by purchase of land has to report the sale transaction to the Village Accountant obviously for the purpose of effecting the necessary mutation in the revenue records. The Second Proviso thereto has exempted inter alia the purchaser from making such report to the Village Accountant if such transaction is represented by a registered document. It is an admitted position on record that the petitioner purchased the disputed land from the deceased by means of a registered sale deed. He was therefore not required to report that transaction to the Village Accountant. The Village Accountant was required to take note of that transaction on account of its Page 5 of 9 HC-NIC Page 5 of 9 Created On Mon Aug 14 13:33:58 IST 2017 C/SCA/10255/2016 JUDGMENT registration according to the Indian Registration Act, 1908. In that case, the question of following the procedure of Sec.135D of the Code would not arise when a transaction is represented by a registered document, its suo motu cognizance is required to be taken by the Village Accountant for the purpose of its mutation in the concerned revenue record. If that transaction is disputed, the disputing party will have to approach the competent civil Court for annulling or avoiding such transaction as provided in Sec.31 of the Specific Relief Act, 1963. It would not be open to him to dispute the validity of the transaction in what is popularly known as the RTS proceedings. I think respondent No.3 was not justified in setting aside the entry at Annexure A to this petition on the ground that the required notice under Sec.135D of the Code was not served to the deceased. I am of the opinion that the deceased was not required to be served with the notice under the said statutory provision."

7. Mr. Vishrut R. Jani, learned Assistant Government Pleader, appearing on an advance copy of the petition for the respondents submits that in view of the settled position of law, this Court may pass appropriate orders.

8. This Court has heard learned counsel for the respective parties, perused the averments made in the petition as well as the provisions of Sections135(C) and 135(D) of the Code. The second proviso to Page 6 of 9 HC-NIC Page 6 of 9 Created On Mon Aug 14 13:33:58 IST 2017 C/SCA/10255/2016 JUDGMENT Section135(C) of the Code, reads as below :

Section135(C) Acquisition of rights to be reported *** *** *** "Provided further that any person acquiring the right by virtue of a registered document shall be exempted from the obligation to report to the designated officer."

9. It is clear from the above proviso that a person in whose favour a registered Sale Deed has been executed is not obliged to approach the revenue authority for the mutation of such Sale Deed. On the contrary, the Revenue Authorities are liable to post the entry recording such transaction on their own, in the revenue record. This view is supported by the judgment of this Court in Nathubhai Meraman Darji Vs. Special Secretary (Appeals) (supra), wherein it is stated that the the question of following the procedure of Section135(D) of the Code would not arise when a transaction is represented by a registered document and suo motu cognizance is required to be taken by the revenue authority for the purpose of its mutation in the concerned revenue record.




                                        Page 7 of 9

HC-NIC                               Page 7 of 9      Created On Mon Aug 14 13:33:58 IST 2017
                 C/SCA/10255/2016                                         JUDGMENT

10. In the present case, there is no dispute regarding the fact that no objection has been raised from any quarter against the registered Sale Deed, an entry regarding which is required to be mutated in the revenue record. Insofar as the judgment and decree of the Civil Court is concerned, it is obligatory on the part of the revenue authority to mutate an entry concerning such judgment and decree, so that the record contains the factual and legal information of events.

11. In view of the above discussion as well as the provisions of law and the principles of law enunciated by this Court in the abovequoted judgment, the following order is passed :

The respondent - Mamlatdar (Edhara), Ahmedabad, is directed to post and, thereafter, certify the necessary entry recording the judgment and decree passed by the Civil Court in Regular Civil Suit No.511/2001. He shall also post and, thereafter, certify the entry regarding the registered Sale Deed Page 8 of 9 HC-NIC Page 8 of 9 Created On Mon Aug 14 13:33:58 IST 2017 C/SCA/10255/2016 JUDGMENT dated 23.05.2006. This exercise shall be carried out and completed within a period of one month from the date of the receipt of a copy of this judgment.

12. The petition is allowed, in the above terms. Rule is made absolute, accordingly.

13. Direct service is permitted.

(SMT. ABHILASHA KUMARI, J.) /phalguni/ Page 9 of 9 HC-NIC Page 9 of 9 Created On Mon Aug 14 13:33:58 IST 2017

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