Gujarat High Court
Hemlataben Narayanbhai Agrawal vs State Of Gujarat on 22 March, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/13111/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13111 of 2016
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HEMLATABEN NARAYANBHAI AGRAWAL
Versus
STATE OF GUJARAT
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Appearance:
MS SANGEETA PAHWA FOR THAKKAR AND PAHWA ADVOCATES(1357)
for the PETITIONER(s) No. 1
MS DIVYANGNA JHALA, AGP (99) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 22/03/2018
ORAL ORDER
Heard learned advocate Ms.Sangeet Pahwa for Thakkar and Pahwa Advocates for the petitioner and learned Assistant Government Pleader Ms.Divyangna Jhala for the respondent - State and its authorities.
2. By filing the present petition under Article 227 of the Constitution, the petitioner has challenged order dated 18th June,2016 passed by the Secretary, Revenue Department (Appeals), whereby the said revisional authority dismissed Revision Application No.16 of 2015 of the petitioner, in turn confirmed order dated 31st January, 2015 of Collector, Tapi, in Suo Motu Case No.07 of 2014.
3. The facts were that agriculture land bearing Block No.98B/1 at Village Nimbhora, Taluka Nizar, stood in the name of one Dharamdasbhai Patel. He sold the said land under registered sale deed to the Page 1 of 8 C/SCA/13111/2016 ORDER present petitioner. In view of the said transaction, Mutation Entry No.1795 was made on 10th May, 2013. Circle Officer notified the Entry on 27th June, 2013.
3.1 It appears that at a later stage, Mamlatdar forwarded the case papers to the Collector requesting him to take the Entry in suo motu revision. It was on the ground that since the petitioner originally belonged to the Sate of Madhya Pradesh, it was not clear as to how she was an agriculturist in this State. The Collector passed order on 31st January, 2015 to set aside the said Mutation Entry No.1795 and further directed to initiate the proceedings under Section 84-C of the Bombay Tenancy and Agriculture Lands Act, 1948. Against the said order, the petitioner filed Revision Application which culminated into the impugned order.
4. The reasoning adopted by the Collector and endorsed to by the revisional authority was inter alia that any evidence was not available about the status of agriculturist of the petitioner. The petitioner, according to the authorities, was a non- agriculturist person and therefore, in view of Section 63 of the Tenancy Act, a non-agriculturist was debarred from transferring the land. Consequently, it was concluded that the Entry No.1795 could not have been mutated and further that after undertaking procedure under Section 84-C, land was liable to be forfeited to be vested in the State Government. According to the revisional authority, the petitioner failed to prove himself to be the Page 2 of 8 C/SCA/13111/2016 ORDER agriculturist either by birth or by heirship status.
4.1 The petitioner relied on Entry No.1115 in respect of land Block No.119 of Village Vankvel of Songadh Taluka which was in the name of the father of the petitioner and which established that father of the petitioner was agriculturist and resultantly petitioner also, upon death of the father, became agriculturist. This case was not believed by the revisional authority on the ground that evidence was insufficient and that Entry No.1115 in question was liable to be treated as ineffective. Learned advocate for the petitioner however harped that petitioner had acquired the status of agriculturist. He, in that regard, relied on the Entry No.1795 itself, copy of which was produced on the record of the petition (Annexure-I, Page No.45). While certifying the said Entry, Talati-cum-Mantri had endorsed in the last column that petitioner was holding land Block No.119 and 129/2 at Village Vankvel, Songadh and accordingly status of being agriculturist was verified. Be as it may.
5. The question surfaced is whether the revisional authority could have refused to maintain the Mutation Entry No.1795 in the revenue records which had the basis of registered sale transaction in favour of the petitioner. Whether the petitioner was agriculturist or not, is a separate issue. The authorities exercising revenue jurisdiction were incompetent to go into and arrive at findings in that regard.
Page 3 of 8 C/SCA/13111/2016 ORDER5.1 This proposition is well settled in the decision of this Court in Evergreen Apartment Co- operative Housing Society Limited v. Special Secretary (Appeals), Revenue Department [1991 (1) GLH 155], in which it was observed as under.
"12. There is much substance in the second submission of Mr.Hawa also. Ordinarily when a transfer of property takes place by a registered account, an entry is effected in the revenue record and it is certified by the Mamlatdar after making necessary injuries. If there is any dispute regarding mutation, the dispute has to be entered in the register of the disputed cases and then such disputes are to be disposed of by the Mamlatdar. Under sub-rule (5) of Rule 108 of the Rules, the aggrieved party can prefer an appeal within 60 days from the date, of the service of the order. The State Government has power to call for and examine the record of any enquiry or the proceedings of any subordinate revenue officer and to review the same under sub-rule (6) of the rules. It is to be noted in the present case that no appeal had been presented within 60 days from the date of Mamlatdar's order certifying the initial entry. The Assistant Collector, Surat took the said entry in suo motu revision, even though he had no such power under the provisions of Rule 108. It, therefore, appears that the Additional Chief Secretary, Revenue Department remanded the proceeding to the Collector for treating the same as an appeal. This was done after a period of 4 years after the certification of the entry. It was only the State Government which had the power to call for a record of inquiry or proceeding under Sub-rule (6) of Rule 108. Even the State Government was empowered to satisfy itself "as to regularity of such proceedings and as to the legality or propriety of any decision or order passed in such proceedings". SO the entire inquiry and revisional power has to proceed under the Bombay Land Revenue Rules and not under any enactments like the Bombay Tenancy and Agricultural Lands Act, Urban Land (Ceiling and Regulations) Act or Bombay Prevention of Fragmentation and Consolidation of Holdings Act. It is quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not Page 4 of 8 C/SCA/13111/2016 ORDER create any title. Such mutations have to follow either the documents of title or the orders passed by competent authorities under special enactments. Independently the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transaction recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Thus on this second ground also the orders of the Collector and the Additional Chief Secretary appear to be beyond their jurisdiction. The Additional Chief Secretary has held that the sale by auction was not consistent with the provisions of Section 27 of the Urban Land (Ceiling and Regulation) Act. Section 27 relates to prohibition of transfer of any urban land with a building thereon. Apart from legal position that Section 27 has been struck down as ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in the present case. Thus, the order of the revisional authority has proceeded on a misconception of relevant legal provisions also."
5.2 The Collector while passing the order to cancel the Entry in question directed the Mamlatdar to initiate the inquiry under Section 84-C of the Tenancy Act. This part of the direction would take its own course and the competent authority under the Tenancy Act4 may look into it, in which proceedings petitioner will have right to raise all contentions including what was highlighted hereinabove that petitioner's father and thereafter petitioner were agriculturists in respect of the land in Songadh Taluka and that while certifying the Entry No.1795 in question, the said aspect was verified. It is for the authorities functioning under the Tenancy Act to finally adjudge the case of the petitioner on that count.
Page 5 of 8 C/SCA/13111/2016 ORDER6. Adverting to the challenge to the impugned orders, since it is an admitted position that Entry No.1795 was mutated pursuant to the registered sale transaction, it has to figure in the revenue record once it had the backing of registered sale deed.
6.1 In Jhaverbhai Savjibhai Patel Thro' POA Holder Ashok J. Patel v. Kanchanben Nathubhai Patel [2005(3) GLH 657], this Court held that Mutation Entry on the basis of the sale deed could not have been cancelled and the objection in that regard in respect of the validity of the document was a different aspect to be adjudicated by the competent authority, however the Entry must be registered once the registered document is produced. Similar was the proposition laid down in Balvantrai Ambaram Patel v. State of Gujarat being Special Civil Application No.5464 of 2014 decided on 08th May, 2014 as under.
"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 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."
6.2 In Dudhiben Muljibhai Patel v. State of Gujarat being Special Civil Application No.758 of Page 6 of 8 C/SCA/13111/2016 ORDER 1997, decided on 26th February, 2016, the principle of requirement of exercise of powers by the authorities within reasonable time was reiterated, to observe, "7. When there is a registered sale deed executed in favour of the petitioners and the same is not challenged in any civil proceedings, much less set aside, the revenue authority is bound by the same. It is trite principle that an entry in the revenue record has to follow to be mutated when the transaction is by a registered document. This Court in Javerbhai Savjibhai Patel vs. Kanchanben Nathubhai Patel & ors. [2005 (3) G.L.H. 657] laid down such principle and further ruled in Nathubhai Meraman Darji vs. Special Secretary (Appeals) [1996(3) GCD 691] that when the transaction is represented by a registered document, the revenue authority is required to take suo motu cognizance thereof for the purpose of mutation in the revenue record. It was held that question of following procedure of Section 135D of the Bombay Land Revenue Code would not arise when a transaction is by a registered deed. Such transaction cannot be disputed by the revenue authority unless the competent civil court annuls the same."
"8. In the aforesaid view, therefore when there stands executed a registered sale deed in respect of the land in question in favour of the petitioners, the entry in the revenue record on the basis of such transaction has to mutate in the revenue records. Even if the other considerations, though meritorious for setting aside the order, are set apart, on the aforesaid count alone, the order of the Deputy Collector directing cancellation of entries cannot be permitted to stand. The petitioners are within their right to continue with the entries in their name in the revenue record on the basis of the registered sale transaction which is holding the field and is not sought to be set aside by the other side in any civil proceedings."
7. As a result of the foregoing discussion, since Entry No.1795 was based on the registered sale deed, the Collector and the revisional authority were not justified in cancelling the same from the revenue records. The impugned order dated 18th June,2015 in Revision Application No.16 of 2015 by the revisional authority - respondent No.1 herein as well as order Page 7 of 8 C/SCA/13111/2016 ORDER dated 31st January, 2015 by Collector, Tapi - respondent No.2 herein, both are hereby set aside.
The petition is allowed in terms of the
above directions and observations.
(N.V.ANJARIA, J)
Anup
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