Gujarat High Court
Legal Heirs Of Nalinbhai Keshavjibhai ... vs State Of Gujarat on 18 November, 2021
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18809 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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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 ? Yes
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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LEGAL HEIRS OF NALINBHAI KESHAVJIBHAI RAJANI & 2 other(s)
Versus
STATE OF GUJARAT & 5 other(s)
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,1.1,1.2,1.3,2,3
MR.KRUTARTH K PANDYA(7092) for the Petitioner(s) No. 1,1.1,1.2,1.3,2,3
for the Respondent(s) No. 1
MR NIKUNJ KANARA, AGP (1) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 3,4,5,6
RULE UNSERVED(68) for the Respondent(s) No. 2
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 18/11/2021
ORAL JUDGMENT
1. By filing this petition, the petitioners have prayed to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside order dated 28.1.2016 passed by respondent-
Page 1 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 District Collector in Land Revision Case No.4/2008-2009 as well as order dated 24.7.2017 in Revision Application No.MVV/HAKAP/MRB/19/2016 passed by respondent-SSRD (at Annexure-E) as well as order dated 13.02.2009, passed by the Deputy Collector; Morbi in Appeal No.38 of 2007 (at Annexure- C) and order dated 16.10.2007 rejecting entry no.4056 by learned Mamlatdar (at Annexure-B).
2. The brief facts of the case are that dispute pertains to the land situated at Revenue Survey No.9 Paiki 1, admeasuring 5 Acres and 8 Gunthas of Village-Ravapara, Taluka and District- Morbi, which was originally in the joint names of Sadhu Vallabhdas balakdas and Rajaram Balakdas in the year 1953. It is stated that the petitioners have purchased said land from the legal heirs of Vallabhdas Balakdas by way of registered Sale Deed dated 12.7.2007. On the basis of said Sale Deed an entry No.4056 was mutated in the names of the petitioners in Village Form No.6 on 10.8.2007. Thereafter, on 16.10.2007, Mamlatdar has rejected entry No.4056 on the ground that the land belongs to "Thakar Na Mandir Na Diveliya" and, therefore, it cannot be sold or transferred. According to the petitioners, no opportunity of being heard was provided to them. Against that order, the petitioners have preferred Appeal No.38 of 2017 before the Collector, which is also dismissed without considering the submissions of the petitioners herein. The petitioners pointed out that the rejected, which is contrary to Section 15 of the Saurashtra Barkhali Abolition Act. According to the petitioners, in 2016, revision was preferred before the District Collector which also came to be dismissed. Being aggrieved by said order, the petitioners have preferred Revision Application before SSRD, which also came to be Page 2 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021 C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 dismissed vide order dated 24.7.2017. It is stated that revision application is rejected without assigning cogent reasons.
3. Being aggrieved by all these orders, the petitioners have preferred present petition.
4. Heard learned advocate Mr.Majmudar for the petitioners and learned AGP, Mr.Kanara for the respondent-State.
5. Mr.Majmudar, learned advocate for the petitioners has vehemently submitted that the dispute pertains to the land situated at Revenue Survey No.9 Paiki 1, admeasuring 5 Acres and 8 Gunthas of Village-Ravapara, Taluka and District-Morbi, which was originally in the joint names of Sadhu Vallabhdas balakdas and Rajaram Balakdas in the year 1953. He submitted that the petitioners have purchased said land from the legal heirs of Vallabhdas Balakdas by way of registered Sale Deed dated 12.7.2007. He has submitted that on the basis of said Sale Deed an entry No.4056 was mutated in the names of the petitioners and, thereafter, Mamlatdar has rejected entry No.4056 on the ground that the land belongs to "Thakar Na Mandir Na Diveliya" and, therefore, it cannot be sold or transferred. According to him, no opportunity of being heard was provided to the present petitioners. He has submitted that against that order, the petitioners have preferred appeal No.38 of 2017 before the Collector, which is also dismissed without considering the submissions of the petitioners herein. According to him, in 2016, revision was preferred by the petitioners, which came to be dismissed. Mr.Majmudar, while referring to the documentary evidence has vehemently submitted that the sale deed executed in favour of Page 3 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021 C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 the petitioners was never challenged before any authority. He has also submitted that the authorities have passed the impugned orders without considering legal provisions under the Bombay Land Revenue Code as well as various Government Resolutions. He has submitted that in view of Section 135-C of the Gujarat Land Revenue Code, entry of a registered sale deed is required to be necessarily mutated in the revenue record. He has also submitted that the order passed by the revenue authorities are beyond jurisdiction vested in them under the Rule 108 of the Gujarat Land Revenue Rules. He has also submitted that while deciding the validity of entry, the revenue authorities cannot enter into the validity of the transaction. He has submitted that the petitioners herein are bona fide purchasers and have paid considerations of Rs.4,15,000/- at the relevant time.
5.1 Mr.Majmudar, learned advocate for the petitioners has further submitted that the land in question was already allotted through promulgation to the original owner i.e. Gangaram Gova as first vide entry no.13 and vide entry no.14 to Sadhu Vallabhdas and Rajaram balakdas jointly by Assistant Collector, Morbi, dated 29.12.1953 for doing agricultural activities and land was of old tenure since then. He has also submitted that the authorities have erred in interpreting Section 15 of the Saurashtra Barkhali Abolition Act. He has also submitted that since the land was old tenure land, it was transferrable and it also reflects that Sanad was issued to the owner. He has also submitted that out of the said land, earlier 1 Acre and 12 Gunthas of land was sold by Barkhalidar and another to third parties for which mutation entry was recorded in the revenue record. To substantiate his stand, he has Page 4 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021 C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 referred to the revenue entries in Village Form No.6, page 67 onwards, especially entry no.314 dated 12.3.1955. He has also submitted that revenue authority has no jurisdiction to set at naught the sale deed in favour of the petitioners by passing such order. He has also submitted that exercise of powers after almost 50 years is not justifiable. While relying upon the following decisions, he has prayed to allow present petition.
(i) Umarji Musa Banglawala v. Ibrahim Isap Mhd.Imail Sapa reported in 2004 JX (Guj) 1693.
(ii) Kalidas Rupabhai v. State of Gujarat reported in 2002 (2) GLH (U.J.) 6.
(iii) Kanuben Daughter of Jaysinh Khushalsinh v. State of Gujarat reported in 2001 JX (Guj) 23.
(iv) State of Gujarat v. Daudbhai Ismailbhai Mansur reported in 2013 (3) GLR 2520.
(v) Santoshkumar Shivgonda Patil v. Balasaheb Tukaram Shevale reported in 2009 (9) SCC 352.
(vi) Chaital Rashmikant Bhatt v. State of Gujarat reported in 2017 JX (Guj) 490.
6. Per contra, learned AGP Mr.Nikunj Kanara has vehemently submitted that the revenue authority has not committed any error of facts and law in passing in the impugned order. He has submitted that the land was not given to any individual but it was given for the purpose of Thakor Mandir na Diveliya. He has submitted that the persons, whose names are entered in the register are only occupiers and not the owners of the land. He has submitted that by considering Section 15 of the Saurashtra Barkhali Abolition Act and other provisions of the Land Revenue Code, the revenue authority Page 5 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021 C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 has passed the impugned orders, which cannot be termed as illegal orders. He has submitted that sale of the land itself is ab initio void and, therefore, no rights or title could be vested in the petitioners. According to him, the submissions made on behalf of the petitioners are devoid of merits and the decisions relied upon by learned advocate for the petitioners are not applicable to the facts of the present case. Mr.Kanara has relied upon the decision in the case of Devrajbhai Valjibhai Gada v. State of Gujarat reported in 2016 JX (Gujarat) 1759 and submitted to dismiss present petition by confirming the orders of the revenue authorities.
7. In rejoinder, learned advocate Mr.Majmudar vehemently submitted that the action initiated by the authority is under the RTS and it was not under the Barkhali Abolition Act. He has further submitted that even if any entry is set at naught, then necessary action is to be initiated in a time bound manner. He has submitted that the authority could initiate any action against under a particular Act for breach of provisions of the Act but they cannot set at naught a registered Sale Deed simply by rejecting revenue entry. He has submitted that reliance placed by learned AGP on the decision in the case of Devrajbhai Valjibhai Gada is not applicable in the facts of the present case.
8. In the case of Umarji Musa Banglawala (supra), this Court has observed as under:-
"7. Upon hearing the learned Counsel appearing for the parties it appears that the issues involved in these petitions are covered by the decision of this Court dated 28.9.2004 in Page 6 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021 C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 case of " JAYANTILAL JETHALAL SONI versus STATE OF GUJARAT" in SCA No.12547/2004. In the said decision, this Court at paragraphs 7, 8, and 9, has observed as under:
"7. It appears that if a registered sale deed is executed by the holder of the land, it confers the right pertaining to the land in question in favour of the purchaser of the land and, therefore, the rights pertaining to the land in question in normal circumstances can be said to have been acquired over the land in question for which recording is required to be made in the revenue record. It is also well settled that the revenue entries are having value only for fiscal purpose and more particularly for the purpose of recovery of revenue and it neither confers any right or title over the property, nor does it take away the right or title in the property which otherwise cannot be available under the law. However, the question which arises for the consideration is if a sale deed is executed by the holder of the land which runs prima facie counter to the other statutory provisions of other enactment or is barred under the other enactment or it alters or disturbs the rights of the persons under the other enactment then, can the revenue authority shut its eyes by ignoring such flagrant violation of such law or if it is considered, what will be the proper course to be followed ? In case of "Evergreen Apartment Co-op. Housing Society"
(supra), this Court has expressed the view that it is not open to the revenue authority exercising power under the Code to exercise power under the other enactment and to decide in respect to the breaches which are committed under the other enactment and Page 7 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021 C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 thereby to uncertify the entry or to cancel the entry made in the revenue record. In case of "Janardan D. Patel v. State of Gujarat" (supra) at para 11, it has been observed as under:
"11. If any such question arises, the matter should be referred to the authority empowered to deal with under the said other enactment. For example, the validity of a transaction on the basis of Sec. 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (the Tenancy Act for brief) is sought to be challenged.
That question cannot be decided by revenue authorities in RTS proceedings. In such situation, the correct procedure to be followed would be to refer the matter to the authority empowered under the Tenancy Act for his decision. The necessary mutation entry may be made only after the decision of that authority under the Tenancy Act is received. It would, however, not be open to revenue authorities in RTS proceedings to decide that question."
.....................
10. Therefore, in view of the aforesaid and considering the facts and circumstances, even if the transaction is in breach of the provisions of the other enactment which in the present case is Fragmentation Act, the entry on the basis of registered sale deed is required to be recorded by the Revenue Authority exercising power under the Code, but if the concerned Officer is of he prima facie view that the transaction is in breach of the provisions of the Fragmentation Act, it may be mentioned while certifying the said entry that the transaction is, Page 8 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021 C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 prima facie, in breach of the provisions of the Fragmentation Act and the entry is certified subject to the final order which may be passed by the Competent Authority under the Fragmentation Act, but the action for cancellation of the entry in toto cannot be maintained and sustained in the eye of law. No further discussion is required on the said aspects in view of the reasons mentioned in the aforesaid decision reproduced hereinabove."
8.1 In the case of Kalidas Rupabhai (supra), this Court has observed as under:-
"11. I have gone through the pleadings made in the petition as well as I have heard the ld. advocate appearing for the petitioner as well as the ld. AGP appearing for the respondent No.1 at length. While reading the order passed by the respondent No.1 filed at Annexure "G" with the petition, it is clear that he was exercising his revisional powers under Sec. 211 of the Code, and while exercising his powers, it is not open for him to give directions to the competent authority under Sec. 9 of the Act as those proceedings were neither before him nor he was supposed to express any opinion on that issue. If he was to call upon to decide any matter which arose under that Act, the directions so given by him were held to be justified. The revisional authority cannot take the parties by surprise by giving directions which may not germane from the proceedings pending before him. This Court has also taken the same view in the case of Evergreen Apartment Co- op. Housing Society (Supra)."
8.2 In the case of Kanuben daughter of Jaysinh Khushalsinh (supra) this Court has observed as under:-
Page 9 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 "13. The last point for consideration is, whether powers conferred on one authority under two acts can be simultaneously exercised in proceedings under one of such Act. In the instant case, the validity of sale transaction could be determined under sec.84 (C) of the Bombay Tenancy Act, wherein it could be decided whether the sale deed in favour of the petitioners was in violation of the provisions of sec.63 of the Bombay Tenancy Act and Agricultural Lands Act, 1948.
That exercise has not been undertaken so far under the provisions of the Bombay Tenancy Act. On the other hand, one of the impugned orders Annexure-'C' shows that the Deputy Secretary directed the Mamlatdar(ALT) to proceed separately under sec.84 of the Bombay Tenancy Act.
14. So far as the validity of mutation entry is concerned, it is determined in proceedings popularly known as RTS proceedings. RTS proceedings are conducted under Bombay Land Revenue Code and not under Bombay Tenancy 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 power under one enactment while proceeding under another enactment. To be more specific, it can be said that an officer exercising power under sec.211 of the Bombay Land Revenue Code could not, in the same proceeding, exercise power under the Bombay Tenancy Act. The two proceedings are of independent nature. The validity of the sale transaction is to be decided under the Bombay Tenancy Act, whereas correctness of mutation entry is to be determined under RTS proceedings. So far 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.
Page 10 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 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 framed under the Bombay Land Revenue Code, can not pass orders for cancelling the entries on an assumption that the transaction recorded in the entry is 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. Provision for summary eviction is to be found under sec.84 of the Bombay Tenancy Act, whereas sec.84(A) of the said Act relates to validation of transfer made before the appointed day. Sec.84(C) provides for holding inquiry by Mamlatdar where he has reasons to believe that transfer or acquisition has become invalid under any provision of this Act. Prohibition of transfer of land to non-agriculturist is contained in sec.63 of the Bombay Tenancy Act and the effect of transfer in contravention of secs.63 and 64 is dealt with under sec.84(A) of the Bombay Tenancy Act. This exercise could be done by the authorities empowered to act under the Bombay Tenancy Act but, the revenue authorities can not undertake this exercise while deciding the mutation matter in RTS proceeding or deciding revision under sec.211 of the Bombay Land Revenue Code and can not determine the validity of sale transaction. To some extent, where the facts were similar in EVERGREEN APARTMENT v. SPECIAL SECRETARY 1991(1) GLR 113, it was held that power conferred under one enactment can not be exercised while dealing with a question under another enactment, especially so when Revenue Officers are empowered to act under various enactments."
Page 11 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 8.3 In the case of State of Gujarat v. Daudbhai Ismailbhai Mansur (supra), this Court has observed in paragraph 6 that period of eight years is too long a time to be countenanced to permit a statutory authority to exercise suo motu powers.
8.4 In the case of Santoshkumar Shivgonda Patil (supra), honourable Apex Court, in paragraph 16, has observed that it is settled that if a statute does not prescribe time limit for exercise of revisional power, it does not mean that such powers can be exercised at any time; rather it should be exercised within a reasonable time. It was further observed that it is so because the law does not expect a settled thing to be unsettled after a long lapse of time. It was further held that where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein. Ordinarily, the reasonable time within which power of revision may be exercised would be three years, of course, to the exceptional circumstances in a given case, but surely exercise of revisional power after lapse of 17 years is not a reasonable time.
8.5 In the case of Chaital Rashmikant Bhatt (supra), this Court has observed as under:-
"25. There is another aspect to the matter. As per Section-135 (C) of the Gujarat Land Revenue Code, 1879, the revenue authorities are bound to make and certify the entry Page 12 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021 C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 regarding a registered sale transaction. On this ground as well, the entry in question could not have been cancelled. As four years have elapsed since the execution of the Sale Deed, equities have arisen in favour of the petitioners as they would obviously have incurred expenditure to maintain and develop the land and perform agricultural activities thereupon. The petitioners are owners of the land in question and the Sale Deed has not been questioned by any person in the competent Civil Court. As the Sale Deed is intact, the entry regarding it cannot be cancelled from the revenue record."
8.6 In the case of Devrajbhai Valjibhai Gada (supra), it was found that entries were made in the revenue record in violation of Section 63 of the Tenancy Act and, therefore, Mamlatdar was directed to initiate proceedings under Section 84-C of the Act. Under these circumstances, it was observed that, in such proceedings, the petitioners would be having an opportunity of being heard and produce necessary material and, therefore, petition came to be dismissed.
9. Having considered the submissions made on behalf of both the sides as well as the decisions cited at bar and the material placed on record, it appears that the land in question was granted to "Thakar Mandir Na Diveliya" to Vallabhdas as well as Rajaram Balakdas vide occupancy certificate No.46 dated 23.8.1952, which is at page 65. The conditions therein are at page 66. First condition envisaged that said land could be sold or can be rented. It is also reflected from there that heir-ship right is also available to the occupants and right is also granted for transferring the occupancy rights to anybody else by a Sale Deed. On perusal of the Village Form No.6, it Page 13 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021 C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 appears that entries were made in the name of Gangaram Gova and Sadhu Vallabhdas and Rajaram Balakdas vide entry No.13 and 14. Thereafter on 12.3.1955, vide entry no.314, all the three persons have sold the portion of the land of 1 Acre and 12 Gunthas vide registered Sale Deed, which has been certified way back in the same year. It also appears that the petitioners herein have purchased the land by registered sale deed and entry was also made in that regard. The same was rejected by the concerned authority against which revenue proceedings were initiated by the petitioners, which came to be rejected by revenue authority on the ground that the land in question was not of the ownership of seller but it was of the Thakor na Mandir na Diveliya. It also appears from the impugned order that not only the entry of the present transaction has been cancelled but all the earlier entries were also ordered to be cancelled and direction was issued to the concerned subordinate authority to initiate proceedings to take it into revision under Section 106 of the Revenue Code for cancellation of entry nos.13, 14, 314, 3363, 3763, 4095. Thus, it appears that the entries were made in the year 1952 and the same are proposed to be taken into revision after more than 50 years. It appears that no proceedings under Revenue Code or any other Act are initiated for breach of conditions of occupancy certificate. The entries are sought to be cancelled only on the ground of breach of condition of the occupancy certificate. It appears that if any action for cancellation of occupancy certificate or any other rights is sought to be taken away then necessary proceedings under relevant statute are required to be initiated by the revenue authority. The revenue authority cannot delve upon cancellation of rights by cancelling revenue entries. It is not open for the revenue Page 14 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021 C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 authorities to exercise power under the Code in place of exercise of power under another enactment and decide the purchase which are under another enactment and thereby uncertify the entry or cancel the entry made in revenue record. However, it cannot be said that the authority exercising power under the Land Revenue Code has absolutely no jurisdiction to even prima facie consider the matter as to whether breach of another enactment is committed or not. At the most, it can be said that the authority exercising power under the Code has no power to conclude as to whether breach of another enactment by the impugned transfer or registered Sale Deed is made or not.
10. Considering aforesaid facts coupled with various decisions cited above, the present petition deserves to be allowed. The impugned orders dated 28.1.2016 passed by respondent-District Collector in Land Revision Case No.4/2008- 2009 as well as order dated 24.7.2017 in Revision Application No.MVV/HAKAP/MRB/19/2016 passed by respondent-SSRD (at Annexure-E) as well as order dated 13.02.2009, passed by the Deputy Collector; Morbi in Appeal No.38 of 2007 (at Annexure- C) and order dated 16.10.2007 rejecting entry no.4056 by learned Mamlardat (at Annexure-B) are hereby quashed and set aside.
11. Accordingly, entry no.4056 shall stand restored. Revenue record of the concerned village be corrected accordingly, with observation and clarification that if any action under relevant statute is required to be initiated by the revenue authority i.e. by competent authority, then it can be undertaken in accordance with law, of course, subject to the period of Page 15 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021 C/SCA/18809/2017 JUDGMENT DATED: 18/11/2021 limitation as prescribed under the relevant Statute/Rules. Further, as and when such proceedings are initiated, the petitioners concerned will be at liberty to raise all contentions, which may be available in law.
12. The petition is allowed to the aforesaid extent. Rule is made absolute accordingly. There shall be no order as to costs.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 16 of 16 Downloaded on : Fri Nov 19 06:15:07 IST 2021