Gujarat High Court
Narendrabhai Shanilal Parikh vs State Of Gujarat on 10 August, 2023
NEUTRAL CITATION
C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3401 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 3403 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NARENDRABHAI SHANILAL PARIKH
Versus
STATE OF GUJARAT & 6 other(s)
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Appearance:
MR AB MUNSHI(1238) for the Petitioner(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 6
MR MAUNISH T PATHAK(5892) for the Respondent(s) No. 6
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1,2,3,4
RULE SERVED for the Respondent(s) No. 5,7
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 10/08/2023
ORAL JUDGMENT
Since the issue involved in both these petitions are Page 1 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023 NEUTRAL CITATION C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023 undefined similar, the same are taken up for final disposal with consent of learned advocates appearing for the respective parties, by treating the Special Civil Application No.3401 of 2018 as lead matter.
2. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has questioned the legality and validity of the order dated 15/22.1.2018 passed by the respondent No.1 - Special Secretary (Appeals), Revenue Department in Revision Application No.58 of 2017 as well as the order dated 3.3.2017 passed by the Collector, Panchmahals at Godhara in RTS Appeal No.72 of 2016, by which the order passed by the Deputy Collector, Godhara dated 16.1.2016 was set aside and the order dated 26.3.2013 passed by the Mamlatdar, Godhara whereby the registered sale deed mutation entry No.811 came to be cancelled, was upheld.
3. Short facts of the case can be stated as under :
3.1 The land bearing Survey No.1/5 Paiki 2 of village Bhima, Taluka - Godhara, District - Panchmahals admeasuring 14765 sq.mtrs. of old tenure was owned and possessed by one Salambhai Zavrabhai. The said land came to be purchased by the petitioner by way of registered sale deed dated 3.10.2011 by paying full consideration.
3.2 Pursuant to the aforesaid registered sale deed, mutation entry came to be mutated in the revenue record being Entry No.811. However, the respondent Nos.5 and 6, who are Page 2 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023 NEUTRAL CITATION C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023 undefined claiming themselves to be the interested persons in the land, filed their objection against the mutation of Entry No.811.
Pursuant to the said objection, RTS Dispute Case No.8 of 2012 came to be registered by the Mamlatdar, Godhara and thereafter, the Mamlatdar, Godhara vide its order dated 26.3.2013, was pleased to reject the mutation entry on the ground that Village Form No.7/12 produced by the petitioner with respect to land bearing Survey No.120 of Village Abhetwa, Taluka - Halol is situated outside the Taluka limit of Godhara.
3.3 Being aggrieved by the aforesaid, the petitioner approached the Deputy Collector, Godhara by way of RTS Appeal No.72 of 2013. The Deputy Collector, Godhara vide its order dated 16.1.2016 allowed the said Appeal by quashing and setting aside the order dated 26.3.2013 passed by the Mamlatdar, Godhara and ordered to certify the Entry No.811.
3.4 Being aggrieved by the aforesaid, the respondent No.6 herein approached the Collector by way of RTS Appeal No.72 of 2016, challenging the order of the Deputy Collector, Godhara. The Collector, Panchmahals at Godhara on 3.3.2017, by two separate orders of the same date allowed both the Appeals filed by the respondents herein by quashing and setting aside the order of the Deputy Collector, Godhara dated 16.1.2016 and further, confirmed the order of the Mamlatdar, Godhara dated 26.3.2013.
3.5 Being aggrieved by the aforesaid, the petitioner approached the respondent No.1 - Special Secretary Page 3 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023 NEUTRAL CITATION C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023 undefined (Appeals), Revenue Department by way of Revision Application No.58 of 2017 and 57 of 2017. The respondent No.1 - Special Secretary (Appeals), Revenue Department vide its order dated 15/22.1.2018, rejected both the Revisions preferred by the petitioner.
3.6 Being aggrieved by the aforesaid, the petitioner has approached this Court by way of this petition under Articles 226 and 227 of the Constitution of India for the appropriate reliefs.
4. I have heard learned advocate Mr.A.B. Munshi for the petitioner, learned advocate Mr.Maunish Pathak for respondent No.6 and learned Assistant Government Pleader Mr.Utkarsh Sharma for respondent - State authorities.
5. Learned advocate Mr.A.B. Munshi for the petitioner, while assailing the orders impugned, has made following submissions:
(i) Learned advocate for the petitioner submitted that the petitioner has purchased the land by way of registered sale deed after paying full consideration and, therefore, in view of Section 135-C of the Gujarat Land Revenue Code, 1879, it is the obligation on part of revenue authorities to give effect of the sale in the revenue records and refusal thereof is against the provision of Section 135-C and thereby, the impugned orders require to be quashed and set aside.
(ii) Learned advocate for the petitioner next submitted that Page 4 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023 NEUTRAL CITATION C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023 undefined the Mamlatdar, Godhara, while refusing to certify the Entry No.811 on the ground that the petitioner has not produced anything showing that the land is within the Godhara Taluka and thereby, the entry in question came to be cancelled.
According to learned advocate, the petitioner is an agriculturist and is holding agricultural land in Taluka Halol and thereby, the objection raised by the authorities is not sustainable and, therefore, the same requires to be set aside.
5.1 By making above submissions, learned advocate urged this Court to allow the present petitions.
6. Per contra, learned advocate Mr.Maunish Pathak for the respondent No.6, while supporting the order, has made the following submissions :
(i) Learned advocate submitted that the respondent No.6 is cultivating the land since last 15 years and that he has paid the amount to the original owner i.e. respondent No.7 for the purchase of the land in question and thereby, the sale deed executed by the original owner in favour of petitioner cannot be said to be legal one and thus, the entry on that basis has rightly been cancelled.
(ii) Learned advocate for the respondent No.6 fairly submitted that respondent No.6 has also filed the suit, seeking cancellation of the sale deed of the petitioner being Regular Civil Suit No.60 of 2018 before the learned Principal Senior Civil Judge, Godhara, which came to be dismissed on 11.3.2019 while exercising powers under Order 7 Rule 11(d) Page 5 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023 NEUTRAL CITATION C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023 undefined of the CPC. Copies of the plaint as well as the judgment have been produced on record in support of his submissions.
6.1 By making above submissions, learned advocate for the respondent, requested this Court to dismiss the present petition.
7. I have heard learned advocates appearing for the respective parties and have gone through the material produced on record. No other and further submissions have been canvassed by the learned advocates appearing for the respective parties.
8. A short question that falls for the consideration by this Court is whether the impugned order passed by the revenue authorities can be said to be legal?
9. So as to consider the aforesaid question, it would be apt to take note of certain facts which can be stated as under:
9.1 The petitioner is the purchaser of the land in question by way of registered sale deed after payment of full consideration. The respondent No.6 is one of the objectors to the revenue entry No.811, who is claiming himself to be in possession by paying the consideration of the land to the original owner. However, the owner has not executed any document and/or sale deed in favour of respondent No.6.
9.2 The suit being Regular Civil Suit No.60 of 2018 filed by the respondent No.6 seeking cancellation of the sale deed as Page 6 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023 NEUTRAL CITATION C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023 undefined well as declaration and injunction has been dismissed by the learned 2nd Additional Senior Civil Judge, Godhara on 3.11.2019 and thereafter, till today, there is no Appeal whatsoever is filed. Thus, the said judgment and order can be said to have attained its finality.
9.3 The main ground for cancelling the mutation entry by the revenue authorities is that the petitioner could not produce any document showing the agricultural land within the Godhara Taluka, however, the petitioner had produced the certificate of the Mamlatdar, Halol being No.JMN/Khe.Kha/VASHI/197/2012.
10. At this stage, it is pertinent to note that the law with regard to mutation of entry of a registered sale deed as well as while mutation of the entry, the jurisdiction of the revenue authorities has already been settled by this Hon'ble Court in catena of decisions. It would be apt to take note of the decision of this Court in case of Gandabhai Dalpatbhai Patel vs. State of Gujarat & Others, reported in 2005 (2) GLR 1370. The relevant observations of the said decisions read, thus;
"9. It is the consistent view taken by this Court in catena of judgments that the revenue authorities while dealing with RTS proceedings had no jurisdiction and/or authority to decide the question of title and if there is any dispute with regard to title the parties are to be relegated to the Civil Court. As held by the Hon'ble Supreme Court in the case of State of Gujarat VS. Patel Raghav Natha - AIR 1969 SC Page 1297 and judgment of this Court in the case of Ratilal Chunilal Solanki & Ors. Vs. Shantilal Chunilal Solanki - 1996(2) GLR 525 and Siddharth B. Shah vs. State of Gujarat, Page 7 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023 NEUTRAL CITATION C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023 undefined reported in 1999(3) GLR Page 2527, the revenue authorities cannot decide the disputed question of title to the property and they have to merely go by the documents produced before them. Even this Court has held in the case of Nathabhai Meraman Darji (Supra) that when a document of registered sale deed is produced before the authority, the revenue authorities are bound to give effect to the same and are not required to decide the question of title.
10. Even this Court in a recent judgment in the case of L.R.s of Popat Khima Ramani and Ors. vs. Collector, Rajkot and Ors., reported in 2003(1) GLH 30, has considered the scope of revenue authorities while deciding the question with regard to mutation entry and the powers under Section 135 and Rule 108, has held that revenue authorities are not to decide the question about title and the revenue authorities are to make necessary entries on the basis of decision of Civil Court. It is further held in the said judgment that the revenue authorities are invested with limited powers under Section 135 and they cannot assume to themselves certain powers conferred on them by law and they cannot assume jurisdiction of Civil Court. The revenue authorities cannot decide validity of transaction on touchstone of statutory provision occurring in some enactment and that they cannot decide disputed question of title. In fact, this Court has gone to the extent that when a dispute as to the title arises the parties have to go to the competent Civil Court. In the present case, in fact the Civil Suit is pending between the parties and the Civil Court is to decide all these questions which are raised by the petitioner in the present Special Civil Application with regard to validity of the power of attorney, the genuineness of sale deed, and the authority of power of attorney holder on the basis of the power of attorney. Considering the fact that the suit is pending between the parties and that the petitioner has challenged the legality and validity of the sale deed before the Civil Court and that there is an injunction in the said Suit, in fact the Secretary (Appeals) has tried to strike the balance and has tried to protect the interests of all the parties by directing that the factum of injunction granted by the Civil Court should also be noted in the entry and that the entry in favour of respondent No.5 Page 8 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023 NEUTRAL CITATION C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023 undefined would be subject to the ultimate outcome of the suit pending between the parties in which the legality and validity of the sale deed is challenged. It cannot be said that there is any illegality committed by the Secretary (Appeals). On the contrary, the judgment and order passed by the revisional authority, i.e. Secretary (Appeals) is in consonance with the provisions of Section 135 of the Bombay Land Revenue Code and 108 of the Bombay Land Revenue Rules and the view taken by the Hon'ble Supreme Court as well as this Court with regard to the powers of revenue authorities while dealing with the question of mutation entries. The revenue authorities are not required to consider with regard to the genuineness of the sale deed, the powers and authority of the power of attorney holder under the power of attorney and the question with regard to the title. What is required to be done by the Sub-Registrar at the time when the sale deed was executed cannot be permitted to be done by the Mamlatdar and/or revenue authorities while deciding the question with regard to mutation entry, more particularly the entry in the record of rights is only having a presumptive value and only for a fiscal purpose of recovering and payment of revenue and it does not confer any right, title or interest in favour of any party in the property.
11. So far as submissions and arguments on behalf of the petitioner that by virtue of the aforesaid transaction that there would be a breach of provisions of the Bombay Prevention of Fragmentation Act as the land would be fragmented and therefore also the respondent could not have purchased the land in question and the said transaction was in breach of provisions of the Act and therefore also the entry in favour of the respondent could not have been made on the basis of the said sale. This aspect is already considered by this Court in the case of Evergreen Apartment Cooperative Housing Society Vs. Special Secretary, Revenue Department, Gujarat State, reported in 1991(1) GLR 113, and also in the case of Siddharth B. Shah & Ors. Vs. State of Gujarat, reported in 1999(3) GLR Page 2527. This Court in the aforesaid two judgments has considered the scope and ambit of Rule 108 of the Bombay Land Revenue Rules and the jurisdiction of the revenue authorities while considering the RTS proceedings and Page 9 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023 NEUTRAL CITATION C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023 undefined has held as under;
"So far as the proceedings under Section 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 create any title. Such mutations have to follow either the documents of title or the orders passed by the competent authorities under special enactments. Independently the revenue authorities, as mentioned in 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the "9. It is the consistent view taken by this Court in catena of judgments that the revenue authorities while dealing with RTS proceedings had no jurisdiction and/or authority to decide the question of title and if there is any dispute with regard to title the parties are to be relegated to the Civil Court. As held by the Hon'ble Supreme Court in the case of State of Gujarat VS. Patel Raghav Natha - AIR 1969 SC Page 1297 and judgment of this Court in the case of Ratilal Chunilal Solanki & Ors. Vs. Shantilal Chunilal Solanki - 1996(2) GLR 525 and Siddharth B. Shah vs. State of Gujarat, reported in 1999(3) GLR Page 2527, the revenue authorities cannot decide the disputed question of title to the property and they have to merely go by the documents produced before them. Even this Court has held in the case of Nathabhai Meraman Darji (Supra) that when a document of registered sale deed is produced before the authority, the revenue authorities are bound to give effect to the same and are not required to decide the question of title.
10. Even this Court in a recent judgment in the case of L.R.s of Popat Khima Ramani and Ors. vs. Collector, Rajkot and Ors., reported in 2003(1) GLH 30, has considered the scope of revenue authorities while deciding the question with regard to mutation entry and the powers under Section 135 and Rule 108, has held that revenue authorities are not to decide the question about title and the revenue authorities are to make necessary entries on the basis of decision of Civil Page 10 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023 NEUTRAL CITATION C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023 undefined Court. It is further held in the said judgment that the revenue authorities are invested with limited powers under Section 135 and they cannot assume to themselves certain powers conferred on them by law and they cannot assume jurisdiction of Civil Court. The revenue authorities cannot decide validity of transaction on touchstone of statutory provision occurring in some enactment and that they cannot decide disputed question of title. In fact, this Court has gone to the extent that when a dispute as to the title arises the parties have to go to the competent Civil Court. In the present case, in fact the Civil Suit is pending between the parties and the Civil Court is to decide all these questions which are raised by the petitioner in the present Special Civil Application with regard to validity of the power of attorney, the genuineness of sale deed, and the authority of power of attorney holder on the basis of the power of attorney. Considering the fact that the suit is pending between the parties and that the petitioner has challenged the legality and validity of the sale deed before the Civil Court and that there is an injunction in the said Suit, in fact the Secretary (Appeals) has tried to strike the balance and has tried to protect the interests of all the parties by directing that the factum of injunction granted by the Civil Court should also be noted in the entry and that the entry in favour of respondent No.5 would be subject to the ultimate outcome of the suit pending between the parties in which the legality and validity of the sale deed is challenged. It cannot be said that there is any illegality committed by the Secretary (Appeals). On the contrary, the judgment and order passed by the revisional authority, i.e. Secretary (Appeals) is in consonance with the provisions of Section 135 of the Bombay Land Revenue Code and 108 of the Bombay Land Revenue Rules and the view taken by the Hon'ble Supreme Court as well as this Court with regard to the powers of revenue authorities while dealing with the question of mutation entries. The revenue authorities are not required to consider with regard to the genuineness of the sale deed, the powers and authority of the power of attorney holder under the power of attorney and the question with regard to the title. What is required to be done by the Sub-Registrar at the time when the sale deed was executed cannot be permitted to be done by the Mamlatdar and/or revenue authorities while deciding Page 11 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023 NEUTRAL CITATION C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023 undefined the question with regard to mutation entry, more particularly the entry in the record of rights is only having a presumptive value and only for a fiscal purpose of recovering and payment of revenue and it does not confer any right, title or interest in favour of any party in the property.
11. So far as submissions and arguments on behalf of the petitioner that by virtue of the aforesaid transaction that there would be a breach of provisions of the Bombay Prevention of Fragmentation Act as the land would be fragmented and therefore also the respondent could not have purchased the land in question and the said transaction was in breach of provisions of the Act and therefore also the entry in favour of the respondent could not have been made on the basis of the said sale. This aspect is already considered by this Court in the case of Evergreen Apartment Cooperative Housing Society Vs. Special Secretary, Revenue Department, Gujarat State, reported in 1991(1) GLR 113, and also in the case of Siddharth B. Shah & Ors. Vs. State of Gujarat, reported in 1999(3) GLR Page 2527. This Court in the aforesaid two judgments has considered the scope and ambit of Rule 108 of the Bombay Land Revenue Rules and the jurisdiction of the revenue authorities while considering the RTS proceedings and has held as under;
"So far as the proceedings under Section 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 create any title. Such mutations have to follow either the documents of title or the orders passed by the competent authorities under special enactments. Independently the revenue authorities, as mentioned in 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transactions 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 Page 12 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023 NEUTRAL CITATION C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023 undefined affected by any order that may be passed."
Considering the judgment of this Court in aforesaid two cases, there is no substance in the argument and submission on behalf of the petitioner to the effect that while considering the RTS proceedings and making necessary entry in favour of the respondents, the revenue authority was also required to consider that by aforesaid transaction there will be breach of provisions o Fragmentation Act or not and the same is required to be rejected."
transactions 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."
Considering the judgment of this Court in aforesaid two cases, there is no substance in the argument and submission on behalf of the petitioner to the effect that while considering the RTS proceedings and making necessary entry in favour of the respondents, the revenue authority was also required to consider that by aforesaid transaction there will be breach of provisions o Fragmentation Act or not and the same is required to be rejected."
11. Now, keeping in mind the aforesaid proposition of law as well as the facts of the present case, in my considered opinion, the revenue authorities while exercising the powers under the revenue jurisdiction appear to have exceeded its jurisdiction by refusing to mutate the registered sale deed entry on the ground that the petitioner has not produced the details of land within the Godhara Taluka. The entire crux for cancellation of the mutation of entry is that the petitioner had not produced the agricultural land certificate. In my Page 13 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023 NEUTRAL CITATION C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023 undefined considered opinion, under the provision of Section 135-C of the Code, it is the duty of the revenue authorities to give effect of registered sale deed in the revenue records at the first instance. Whether the petitioner is an agriculturist or not, can be the subject matter in a different and independent proceedings but, certainly, cannot be considered in the revenue proceedings. In the instant case, however, if the order of the Deputy Collector, Godhara dated 16.1.2016 is perused, it is abundantly made clear therein that the petitioner has already produced the agricultural certificate of the Mamlatdar, Halol dated 26.2.2012. Under the circumstances, rejection of mutation entry on that ground, even otherwise, could not have been sustained.
12. Considering the further fact that now, the suit filed by respondent No.6 seeking cancellation of the sale deed has already been culminated into dismissal and that no further appeal has been filed, the order of the competent civil court is said to have attained its finality and thereby also, on that additional ground, the mutation of entry pursuant to the registered sale deed has to be restored. In view of the aforesaid facts and circumstances, the impugned order passed by the revenue authorities is not tenable under the law and thereby, requires to be quashed and set aside.
I answer the question accordingly.
13. For the foregoing reasons, the present petitions are allowed. Accordingly, the impugned orders dated 15/22.1.2018 passed by the respondent No.1 - Special Page 14 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023 NEUTRAL CITATION C/SCA/3401/2018 JUDGMENT DATED: 10/08/2023 undefined Secretary (Appeals), Revenue Department as well as the order dated 3.3.2017 passed by the Collector, Panchmahals at Godhara are hereby quashed and set aside. The revenue authorities are directed to restore the Entry No.811 pursuant to the registered sale deed in the revenue records.
14. Needless to say that by virtue of this order, under the revenue proceedings, the authorities concerned shall not be precluded from taking and/or initiating any proceedings, if otherwise it is found that there is a breach and/or violation of any provision of law.
15. It is further clarified that if any Appeal is preferred and/or pending before the competent higher forum, in that event the outcome of that civil proceedings would finally govern the field of revenue records.
(NIRAL R. MEHTA,J) V.J. SATWARA Page 15 of 15 Downloaded on : Sun Sep 17 00:56:01 IST 2023