Gujarat High Court
Patel Ratilal Bhavanbhai Dobariya & 2 vs State Of Gujarat & 8 on 7 April, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/CA/2813/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR DIRECTION) NO. 2813 of 2017
In
SPECIAL CIVIL APPLICATION NO. 5493 of 2015
==========================================================
PATEL RATILAL BHAVANBHAI DOBARIYA & 2....Applicant(s)
Versus
STATE OF GUJARAT & 8....Respondent(s)
==========================================================
Appearance:
VIRAL K SHAH, ADVOCATE for the Applicant(s) No. 1 - 3
MR MANAN MEHTA, AGP for the Respondent(s) No. 1 - 2
MR VIVEK N MAPARA, ADVOCATE for the Respondent(s) No. 4 - 9
==========================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 07/04/2017
ORAL ORDER
1. Heard Mr.Shah, learned advocate for applicants and Mr.Mapara learned advocate for respondents No.4 to 9. None for respondent No.3. The Court is informed that in petition also respondent no.3 has not entered appearance.
2. In present application, the applicants have prayed, inter alia, that:
"9(B) YOUR LORDSHIP may be pleased to issue an appropriate writ/ order or direction commanding the Page 1 of 13 HC-NIC Page 1 of 13 Created On Tue Aug 15 17:52:27 IST 2017 C/CA/2813/2017 ORDER respondent authorities to mutate the name of the applicants/ original petitioners in the revenue records of the land in question subject to the final outcome of the present petition.
(C) YOUR LORDSHIP may be pleased to direct the respondents herein to mutate the name of the applicants herein in view of a registered Sale Deed in their favour."
3. The applicants of present application are original petitioners in Special Civil Application No.5493 of 2015.
4. In the captioned petition, the applicants petitioners have challenged order dated 18.07.2009 passed by Collector, Jamnagar and the order dated 12.3.2015 passed by Secretary (Appeals).
5. On reading the said two orders, it come out that the substantial dispute involved in the petition is with regard to Mutation of entry in Revenue Record.
6. From the submission by learned advocate for applicants and the details mentioned in impugned orders and the petition, it appears that the petitioners purchased the lands in question from Page 2 of 13 HC-NIC Page 2 of 13 Created On Tue Aug 15 17:52:27 IST 2017 C/CA/2813/2017 ORDER respondent No.3 in the petition.
6.1 It also appears after the said sell transaction was effected, as claimed by the petitionerapplicant, by registered sale deed and thereafter his name was mutated in Revenue Record.
7. However, the subsequently some dispute arose between the parties. Both sides claimed title and rights in respect of the property in question.
8. The dispute culminated into proceedings before Deputy Collector, Collector and Secretary (Appeals).
9. In said proceedings, above mentioned (impugned) orders by the Collector and Secretary (Appeals) came to be passed.
10. As mentioned above, the said orders addressed and decided the petitioners' grievance and the dispute related to the mutation of names in the revenue records. The applicants felt aggrieved Page 3 of 13 HC-NIC Page 3 of 13 Created On Tue Aug 15 17:52:27 IST 2017 C/CA/2813/2017 ORDER by the order passed by Secretary (Appeals) and that, therefore, the applicants filed captioned petition.
11. This Court considered the petition and heard learned advocates for the contesting parties and admitted the petition vide order dated 9.4.2015. After recording the reasons, this Court passed below quoted order:
"05. Hence, following order is passed.
st Rule returnable on 21 July, 2015 .
Interim relief in terms of Para No.9(C) till further orders."
12. At the time when the Court heard the petition and passed above mentioned order and granted above quoted interim relief, the petition contained requests for below mentioned relief:
"(9)[B] YOUR LORDSHIP may be pleased to issue an appropriate writ / order or direction to quash and set aside the orders impugned the orders impugned being order 18/07/2009 passed by the Collector, Jamnagar and the order dated 12/03/2015 passed by the Secretary, Revenue Department (Appeals), Gujarat State at ANNEXURE A colly thereby declaring it to be illegal and non est in the eyes of law.
[C] Pending admission, hearing and final disposal of this petition YOUR LORDSHIP be pleased to stay the implementation, operation and execution of the orders impugned at ANNEXURE A colly.
Page 4 of 13 HC-NIC Page 4 of 13 Created On Tue Aug 15 17:52:27 IST 2017 C/CA/2813/2017 ORDER [D] YOUR LORDSHIP may be pleased to grant exparte ad interim relief in terms of para (10)[C]. [F] YOUR LORDSHIP may be pleased to pass such other and further relief in favour of the petitioners, as deemed just and proper, in the facts and circumstances of the case." {paragraph No.(9)[E] is missing}
13. Subsequently, the petitioners preferred an application being Civil Application No.7354 of 2015 prayed for permission to amend the petition. The request made in the application came to be granted vide order dated 7.7.2015 in Civil Application No.7354 of 2015. On strength of below mentioned request came to be added in the petition by virtue of paragraphs No.[C1], [D1] and [D2], which read thus:
"[C1] YOUR LORDSHIP may be pleased to issue an appropriate writ/order or direction commanding the respondent to quash the Mutation Entry No.1843.
[D1] Pending admission, hearing and final disposal of this petition YOUR LORDSHIP be pleased to stay the certification of the Mutation Entry No.1843.
[D2] Pending admission, hearing and final disposal of this petition YOUR LORDSHIP be pleased to restrain the revenue authorities from mutating any claims with regards the land in question in the revenue records."
14. Even from above quoted reliefs which are prayed for by the petitioners in main petition, it comes out that the substantial and main Page 5 of 13 HC-NIC Page 5 of 13 Created On Tue Aug 15 17:52:27 IST 2017 C/CA/2813/2017 ORDER dispute involved in the petition is with regard to mutation of entry / cancellation of entry from the revenue records. The petitioners have prayed in the petition, inter alia, that the respondents be directed to quash Mutation Entry No.1843 and to restrain the authorities from mutating any claims with regard to land in question.
15. In this backdrop, the petitioners have come out with present application and prayed for direction that the revenue authorities be directed to mutate the names of the applicants during the pendency of the petition.
16. Respondents No.4 to 9 have opposed the application. The said respondents have filed affidavit opposing the application, wherein it is stated and claimed by the opponents that:
"(3) It is further submitted that by Way of interim order this Hon'ble court has only directed stay of the impugned orders passed by the Ld. Revenue Secretary and hence there is nothing that the Respondent has mine to overcome the interim order passed by this Hon'ble Court.
(4) It is further submitted that the revenue entry of encumbrance that is alleged to be contemptuous by the Petitioner is concerned, then it is clarified that Page 6 of 13 HC-NIC Page 6 of 13 Created On Tue Aug 15 17:52:27 IST 2017 C/CA/2813/2017 ORDER Respondent has made no such application for mutation of any; revenue before the Revenue Authorities. It is submitted that as a matter of protocol and practice once such "Khudut Pak Dhiran" is given, Bank on its own make such application to the concerned Revenue Authority for effecting Entry to that effect, which is standard practice in procedure. That Respondent has not made any such endeavor to get any Revenue Entry mutated, nor there is any oblique motive behind the same. It is further 'submitted that the said revenue is still "Draft" entry and it is not yet certified and pending in dispute register before the Mamlatdar. Under the Circumstances, it is submitted that allegations of the petitioners are ill founded and baseless and merely with a view to harass the Respondent.
(5) It is further submitted that Petitioner under the garb of interim orders of this Hon'ble Court is making false publications and spreading rumors in the market and hence Petitioner be restrained from doing such activity or making such publication.
(6) That I declare that what is stated herein above is true to the best of knowledge and the same I believe to be true."
17. When above mentioned aspects and details as well as the subject matter of the dispute between the parties (viz. mutation / cancellation of entry in revenue record) which are borne out from the record of the petition as well as from the orders impugned in the petition and the interim order passed by the Court in main petition and the details in present application are taken into account, then it becomes clear that if the request made in present application is considered and granted, then it would amount to granting, at Page 7 of 13 HC-NIC Page 7 of 13 Created On Tue Aug 15 17:52:27 IST 2017 C/CA/2813/2017 ORDER interim stage, the relief which can be granted at final stage (after final hearing) of the petition and that too if the petitioner succeeds in the petition at final stage.
18. Besides this, if the relief prayed for in this application is granted, then it would amount to preempting substantial and major part of the contention required to be considered in the petition and preempting final outcome in the impugned petition.
19. In this context it is necessary to recall that by virtue of the petition and by the relief prayed for in the petition, the petitioners have raised dispute against the cancellation of the entry whereby their names were mutated and now by interim relief the applicants - petitioners want that the Court should direct the authorities to mutate their name in the revenue record. Thus, if the said relief is granted and if such direction - order is passed at this stage (as prayed for in the application) i.e. by way of Page 8 of 13 HC-NIC Page 8 of 13 Created On Tue Aug 15 17:52:27 IST 2017 C/CA/2813/2017 ORDER interim relief, then it would amount to virtually granting main or substantial relief - which can be granted at final stage if the petitioner succeeds - at interim stage. This aspect comes out clearly in view of the relief prayed for by the petitioners in paragraphs No.[C1], [D1] and [D2] and also from paragraphs No.9(B) and 9(C) of the petition. This is not permissible.
20. Having regard to the nature and scope of the petition and considering the relief prayed for in the petition such relief cannot be granted at interim stage / as interim relief.
21. Even if the objection by the respondents that the petitioners are required to follow the procedure prescribed under the Act for mutation of entry is not taken into account and is not accepted, then also in view of the nature and scope of the subject matter of the petition and the relief prayed for in the the petition, the request made in the application does not deserve to be and cannot be granted during pendency of Page 9 of 13 HC-NIC Page 9 of 13 Created On Tue Aug 15 17:52:27 IST 2017 C/CA/2813/2017 ORDER the petition.
22. During hearing of this application, learned advocate for the applicants emphasized the details and contentions mentioned in paragraph No.3 of the application as well as the details mentioned in paragraph No.3 of the rejoinder affidavit. Of course, Mr.Mapara, learned advocate for opponents No.4 to 9 raised objection so far as the rejoinder affidavit is concerned, on the ground that the copy of the said rejoinder affidavit is not served to him.
23. Be that as it may, for the reasons mentioned above, the application and the request made in present application cannot be considered or granted at this stage.
24. It is necessary to mention at this stage that during hearing of this application, learned advocate for the applicants raised allegation against the opponents and alleged that the opponents are misusing the entry mutated in the Page 10 of 13 HC-NIC Page 10 of 13 Created On Tue Aug 15 17:52:27 IST 2017 C/CA/2813/2017 ORDER revenue record. So as to support the said allegation, learned advocate for the applicants further alleged that on the strength of the entry, the opponents have availed / have applied for loan which would create difficulties / liabilities for the applicants.
25. On this count, it is relevant to mention that:
(i) the said submission brings out and emphasizes the fact that the dispute between the parties is with regard to the mutation of entry and the applicants - petitioners want that the entry which is mutated in the revenue record should be set aside. That is the relief prayed for in the petition. Now, the applicants also want that their names should be entered into the revenue record and entry with their names must be mutated. In present application, that is the direction / relief which the applicants have prayed for. Therefore, as mentioned above, if the relief prayed for in this application is granted, Page 11 of 13 HC-NIC Page 11 of 13 Created On Tue Aug 15 17:52:27 IST 2017 C/CA/2813/2017 ORDER it would amount to granting, virtually and/or substantially, the main relief which is prayed for / which can be granted at final stage of the petition, provided the petitioners succeed in the petition. Such relief cannot be granted at interim stage;
(ii) Besides this, in present application, the applicants have not prayed for any order / direction against the respondents restraining them from creating any encumbrance in respect of the property in question and/or any order restraining the respondents from availing loan against the property in question or any order restraining the opponents from creating mortgage of such other burden over the land in question.
Therefore, in present application, even otherwise, such relief cannot be granted and/or the applications' allegation on such ground against the opponents cannot be considered for passing any order against the respondents, which is not even prayed for in the application. Page 12 of 13 HC-NIC Page 12 of 13 Created On Tue Aug 15 17:52:27 IST 2017 C/CA/2813/2017 ORDER
26. Further, on such allegation when any consequential relief is not prayed for, the direction as prayed for cannot be and does not deserve to be granted, for the reasons mentioned above in present order.
27. As mentioned above, if the relief as prayed for in the application is granted, then it would also amount to impliedly granting the relief which the petitioners would be entitled for at the final stage in the petition, provided they succeed in the petition. For the aforesaid reason, the request made in the application does not deserve to be granted. Therefore, the application is not entertained.
With the aforesaid clarifications, the application is dismissed.
(K.M.THAKER, J.) Bharat Page 13 of 13 HC-NIC Page 13 of 13 Created On Tue Aug 15 17:52:27 IST 2017