Gujarat High Court
Narayanbhai Kaherbhai Bhatia (Rajput) vs State Of Gujarat on 23 January, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/20609/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20609 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 20745 of 2019
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 judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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NARAYANBHAI KAHERBHAI BHATIA (RAJPUT)
Versus
STATE OF GUJARAT
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Appearance:
MR N R DESAI(6504) for the Petitioner(s) No. 1
MR. NISHIT P. GANDHI, ADVOCATE FOR MR SP MAJMUDAR(3456) for
the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4,5,6
MR. UTKARSH SHARMA, AGP in SCA NO. 20609 of 2019
MR. ISHAN JOSHI, AGP in SCA NO. 20745 of 2019 for the Respondent(s)
No. 1
MR ANKIT SHAH(6371) for the Respondent(s) No. 7
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 23/01/2020
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C/SCA/20609/2019 JUDGMENT
ORAL JUDGMENT
1 Rule. Mr.Utkarsh Sharma, learned AGP and Mr.Ishan Joshi, learned AGP, waives service of notice of rule on behalf of the State in respective petitions. Mr.Ankit Shah, learned advocate waives service of notice of rule on behalf of respondent No.7.
2 Heard Mr.Nishit P Gandhi, learned advocate for Mr.S.P.Majmudar, learned counsel for the petitioners, Mr.Utkarsh Sharma, learned AGP, in SCA No. 20609 of 2019, Mr.Ishan Joshi, learned AGP in SCA No. 20745 of 2019 and Mr.Ankit Shah, learned advocate for private respondent No.7. 3 In Special Civil Application No. 20609 of 2019, the prayer is as under:
"16(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the impugned order dated 29.01.2016 passed by the Deputy Collector in Appeal No. 68 of 2013 (at Annexure-B hereto), in so far as the Deputy Collector has observed that there is breach of condition of the order of santhani and the proceedings are required to be taken under section 79A of the Gujarat Land Revenue Code, 1879, the impugned order dated 13.05.2019 passed by the District Collector in Revision Case No. 13 of 2017-18 (at Annexure-F hereto) as well as the impugned order dated 22.08.2019 passed by the Special Secretary, Revenue Department in Revision Application No. MVV/HKP/MARAB/18 of 2019 (at Annexure-G hereto)"Page 2 of 11 Downloaded on : Mon Jun 15 04:26:45 IST 2020
C/SCA/20609/2019 JUDGMENT 4 In Special Civil Application No. 20745 of 2019, the prayers are as under:
"16(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the impugned order dated 03.05.2019 passed by the District Collector in Revision Case No. 77 of 2015-16 (at Annexure-D hereto) as well as order dated 22.08.2019 passed by the Special Secretary, Revenue Department in Revision Application No. MVV/HKP/MARAB/17 of 2019 (at Annexure-E hereto)"
5 The parties in both the petitions are common and the facts too and therefore they are being heard and disposed of by this common order.
6 The petitioner and the respondent No.7 were granted land situated at Revenue Survey No. 1315 of village Ghanshyampur, Tal : Halvad, admeasuring 4-85-63 Hec-Are- sq.metrs on 10.02.1997 on "sankhani" basis. Entry No. 2874 was mutated on record on 10.02.1997 which was certified on 03.04.1997.
6.1 On 15.03.1997, an entry no. 2878 was mutated which was certified on 02.05.1997 on the basis that the petitioner had relinquished his right in favour of respondent No.7, Nehaben.
6.2 The petitioner challenged this before the Deputy Collector. The Deputy Collector by his order dated 29.01.2016 Page 3 of 11 Downloaded on : Mon Jun 15 04:26:45 IST 2020 C/SCA/20609/2019 JUDGMENT allowed appeal No. 68 of 2013 of the petitioner and set aside entry no. 2878. However, the Deputy Collector further ordered the Mamlatdar to take action under Section 79A of the Gujarat land Revenue Code, 1879 on the ground that there was breach of the condition of the order of granting land.
7 Aggrieved by the order of the Deputy Collector dated 29.01.2016, the respondent No.7 preferred Revision Application No. 77 of 2015-2016 before the District Collector. The Collector, by his order dated 13.05.2019 allowed the appeal of the respondent No.7. The petitioner challenges the order of the Collector in Revision Application No. 77 of 2015 by preferring Revision Application No. 17 of 2019 before the Special Secretary. The Special Secretary, by his order dated 22.08.2019, dismissed the petitioner's Revision Application No. 17 of 2019. Special Civil Application No. 20745 of 2019 is preferred against the order in Revision No. 17 of 2019. 7.1 Since the order of the Deputy Collector, though held in favour of the petitioner qua the revenue entry, aggrieved by that part of the order which directed action under Section 79A of the Gujarat Land Revenue Code, the petitioner also preferred Revision Application No. 13 of 2019 before the Collector. The Collector held against the petitioner and the Page 4 of 11 Downloaded on : Mon Jun 15 04:26:45 IST 2020 C/SCA/20609/2019 JUDGMENT petitioner preferred Revision Application No. 18 of 2019 before the Special Secretary which was rejected by order dated 22.08.2019. That order is a subject matter of challenge in Special Civil Application No. 20609 of 2019. 7.2 The order passed in both these petitions, by which the Special Secretary in two separate revision applications resulted in a consequence that:
(a) The order of the Deputy Collector dated 29.01.2016 by which the petitioner succeeded in getting the Mutation Entry No. 2878 recorded by virtue of the petitioner's release deed cancelled, was set aside. Revision Application No. 17 of 2019 on such count failed.
(b) The Deputy Collector's order which directed action under Section 79A of the Gujarat land Revenue Code, stood confirmed as Revision Application No. 18 of 2019 failed.
8 Mr.Nishit Gandhi, learned counsel appearing for Mr.S.P.Majmudar, learned counsel for the petitioner (common in both the petitions) would contend that the orders upholding the revenue entry No. 2878 rendered on 15.03.1997 and certified on 02.05.1997 on the basis of relinquishment of right in favour of respondent No.7 is bad. There was no relinquishment of right qua the lands purchased jointly by public auction. Entry No. 2874 was rightly recorded and Page 5 of 11 Downloaded on : Mon Jun 15 04:26:45 IST 2020 C/SCA/20609/2019 JUDGMENT mutated in their joint names on 10.02.1997. Before certification in April 1997, this alleged relinquishment is taken a basis to mutate entry no. 2878 on 15.03.1997. 8.1 It is a well settled position that relinquishment without a registered instrument is no relinquishment in the eye of law, and therefore, the orders of the Collector and the Special Secretary are bad.
8.2 Reliance was placed on two decisions of the Supreme Court in the case of Sneh Gupta vs. Devi Sarup & ors., reported in 2009 (2) GLH 94 and in the case of Yellapu Uma Maheswari And Another vs. Buddha Jagadheeswararao and others., reported in (2015) 16 SCC
787. 9 Mr.Gandhi, learned counsel, would further submit that the respondent No.7 has also filed a Regular Civil Suit No. 19 of 2016 before the Court of the Principal Civil Judge, Halvad, for a declaration that the subject lands are in her possession and for a further declaration that the petitioner is not entitled to enter such land. The authorities, therefore, ought not to have confirmed the entry No. 2878 entered into pursuant to relinquishment which is not a recognized mode in the eye of law.
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C/SCA/20609/2019 JUDGMENT 10 Mr.Ankit Shah, the learned advocate appearing for the respondent No.7, supported the orders dismissing the revisions of the petitioner. 11 Mr.Utkarsh Sharma and Mr.Ishan Joshi, learned AGPs,
in support of the orders passed by the revenue authorities submitted that since both the revisions were dismissed confirming the orders of the Collector, no interference needs to be made in the orders of the Special Secretary (Appeals). 12 From the perusal of the orders under challenge, the position that emerges is that the case as it stands today is that the order of the Collector in the Revision Application Nos. 77 of 2015-16 and 13 of 2017-18 operate. The effect is that revenue entry No. 2878 entered on 15.03.1997 and certified on 02.05.1997 holding the relinquishment of the petitioner's share was valid.
12.1 From the decisions relied upon by Mr.Nishit Gandhi, learned counsel, in the case of Sneh Gupta (supra), and Yellapa Uma (supra), the relevant paras i.e. para 27 of Sneh Gupta and paras 11 to 13 of Yellapa Uma are reproduced as under:
"27 Title to a property must be determined in terms of the statutory provision. If by reason of the provisions of the Hindu Succession Act, 1956 the appellant herein had derived title to Page 7 of 11 Downloaded on : Mon Jun 15 04:26:45 IST 2020 C/SCA/20609/2019 JUDGMENT the property along with her brothers and sisters, she cannot be deprived thereof by reason of an agreement entered into by and between the original plaintiff and the contesting defendants. If a party furthermore relinquishes his or her right in a property, the same must be done by a registered instrument in terms of the provisions of Indian Registration Act."
"11. Now the issues that falls for consideration are:
11.1. (i)Whether the Courts below were right in holding that Exhibits B21 and B22 are not admissible in evidence as they are compulsorily registerable documents?
11.2. (ii) Whether Exhibits B-21 and 22 are admissible in evidence for collateral purpose?
12. Before we go in to the merits of the matter, we deem it appropriate to extract the relevant provisions of the Registration Act, 1908.
12.1 Section 17 of the Registration Act, 1908 "17. Documents of which registration is compulsory.--
(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Registration Act, 1866, or the Registration Act, 1871, or the Registration Act, 1877, or this Act came or comes into force, namely:--
(a) Instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or Page 8 of 11 Downloaded on : Mon Jun 15 04:26:45 IST 2020 C/SCA/20609/2019 JUDGMENT operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
(f) any decree or order or award or a copy thereof passed by a Civil Court on consent of the defendants or on circumstantial evidence but not on the basis of any instrument which is admissible in evidence under section 35 of the Indian Stamp Act, 1899 (2 of 1899), such as registered title deed produced by the plaintiff, where such decree or order or award purports or operate to create, declare, assign, limit, extinguish whether in present or in future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property; and
(g) agreement of sale of immovable property of the value of one hundred rupee and upwards", Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
12.2 Section 49 of the Registration Act,1908 "49. Effect of non-registration of documents required to be registered.-- No document required by section 17 or by any provision of the Transfer of Property Act, 1882 ( 4 of 1882), to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt; or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by Page 9 of 11 Downloaded on : Mon Jun 15 04:26:45 IST 2020 C/SCA/20609/2019 JUDGMENT registered instrument.
13. Section 17 (1) (b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered u/s 17 of the Act."
13 These would indicate that the right in a property cannot be relinquished except through a registered document / instrument. The mutation of entry No. 2878 in favour of the respondent No.7 on the basis of a relinquishment cannot hold the field. The order of the Special Secretary insofar as they upset the orders of the Deputy Collector dated 29.01.2016 vis-
a-vis the mutation entry No. 2878 recorded on 15.03.1997 and certified on 02.05.1997, therefore, deserve to be set aside. 14 The order of the Deputy Collector dated 29.01.2016, insofar as it ordered action under Section 79-A of the Gujarat Land Revenue Code has been set aside by virtue of the orders of the Collector in Revision Application No. 77 of 2015-2016, and therefore, in absence of a challenge to such order even by the State, directions to initiate action / proceedings under Section 79A do not stand.
15 Moreover, the respondent No.7 has filed a Regular Civil Suit No. 19 of 2016 before the Principal Civil Judge, Halvad, Page 10 of 11 Downloaded on : Mon Jun 15 04:26:45 IST 2020 C/SCA/20609/2019 JUDGMENT asking for a declaration of ownership of the lands in question. 16 Keeping these circumstances in mind, the orders of the Special Secretary, dated 22.08.2019 are quashed and set aside insofar as they approve recording of Mutation Entry No. 2878 dated 15.03.1997 and certified on 02.05.1997. Consequently, mutation entry No. 2874 recorded on 10.02.1997 and certified on 03.04.1997 is restored as directed in the order of the Deputy Collector dated 29.01.2016. Such recording of the mutation entry in the revenue records will be subject to outcome of the Regular Civil Suit No. 19 of 2016. None of the observations made in this order shall have a bearing on the questions raised in the Suit. As far as Section 79-A proceedings are concerned, they have attained finality in favour of the private parties the State cannot initiate any proceedings in the subject as per the order of the Deputy Collector dated 29.01.2016. Both petitions are partly allowed subject to the aforesaid observations and keeping open the rights of the parties that they may take in the pending civil suit. Direct service is permitted.
(BIREN VAISHNAV, J) Bimal Page 11 of 11 Downloaded on : Mon Jun 15 04:26:45 IST 2020