Gujarat High Court
Dadabhai Abhalbhai Lalu & 9 vs State Of Gujarat & 6 on 5 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/16223/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16223 of 2017
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DADABHAI ABHALBHAI LALU & 9....Petitioner(s)
Versus
STATE OF GUJARAT & 6....Respondent(s)
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Appearance:
MR. R.S. SANJANWAL, Sr. ADVOCATE APPEARING WITH MR. SAHIL M
SHAH, ADVOCATE for the Petitioner(s) No. 1 - 10
MR. UTKARSH SHARMA AGP for the Respondent(s) No. 1
MR PR THAKKAR, CAVEATOR for the Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/09/2017
ORAL ORDER
[1] As the issues involved in the matter is quite limited and the private respondents have also appeared on caveat, the matter is taken up for final disposal.
[2] By this application under Article 227 of the Constitution of India, the applicants have prayed for the following reliefs:-
(A) YOUR LORDSHIPS be pleased to admit and allow this petition;
(B) Your Lordships be pleased to issue a writ of certiorari or in the nature of certiorari, or any other writ, order or direction, to quash and set aside the following impugned orders (1) order dated 28.07.2017 passed by learned Special Secretary, Revenue Department (Appeals), Ahmedabad in Revision Application No. MVV/HKP/VDD165/2015, (2) Order dated 21.01.2015 passed by learned Collector, Vadodara, in Revision Application No. 157/2013 (3) Order dated 15.04.2013 Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Sep 16 02:16:54 IST 2017 C/SCA/16223/2017 ORDER passed by learned Deputy Collector, Savli, in RTS Appeal No. 146/2012 and (4) Order dated 30.03.2012 passed by learned Mamlatdar, Vaghodiya in RTS Case No. 71/2011;
(C) Pending the admission, hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to stay the implementation, operation and execution of the following orders-(1) order dated 28.07.2017 passed by learned Special Secretary, Revenue Department (Appeals), Ahmedabad, in Revision Application No. MVV/HKP/VDD165/2015, (2) Order dated 21.01.2015 passed by learned Collector, Vadodara, in Revision Application No. 157/2013 (3) Order dated 15.04.2013 passed by learned Deputy Collector, Savli, in RTS Appeal No. 146/2012 and (4) Order dated 30.03.2012 passed by learned Mamlatdar, Vaghodiya in RTS Case No. 71/2011 in the interest of justice;
(D) YOUR LORDSHIPS may be pleased to grant such other and further reliefs as may be deemed fit and proper, in the interest of justice and equity;
[3] It appears from the materials on record that the applicants herein have filed a Special Civil Suit No. 45 of 2011 in the Court of the learned Principal Civil Judge (Senior Division), Vadodara, for specific performance of an oral contract. The applicants herein filed an application before the Mamlatdar, Vaghodiya, praying for registration of lis pendens. in view of the filing of Special Civil Suit referred to above.
[4] The Mamlatdar, by his order dated 30th March, 2012 held as under:-
On considering all the facts, the present opponent got 'lis pendens' entered and for the suit in question. The learned Court has not passed any injunction order or any final order or no evidence has been produced and therefore, in the 2nd rights of revenue record 'lis penens' cannot be entered, therefore, the entry cannot be certified as on today. The below order is passed.
ORDER The Entry No. 4952 At & Post:- Madhlei, Tal:-
Waghodiya, is set aside.
The order to be communicated to the parties.Page 2 of 8
HC-NIC Page 2 of 8 Created On Sat Sep 16 02:16:54 IST 2017 C/SCA/16223/2017 ORDER The aggrieved way challenge same before the Dy. Collector within 60 days.
Today on 30.03.2012 with my sign and seal.
[5] Being dissatisfied with the order passed by the Mamlatdar, the applicants herein filed RTS the Appeal No. 146 of 2012 before the Deputy Collector. By his order dated 15th April, 2013, dismissed the appeal declining to register the lis pendens. While dismissing the appeal, the Deputy Collector observed as under:-
As contended by the appellant, they have interest in the land in question for which they have preferred Special Civil Suit No. 45/11 in the Court of Principal Civil Judge, Vadodara & Exh.5 has been prayed. On registering of suit, the 'lis pendens' has been registered at Sub- Registrar, Waghodia & for its entry Waghodia, E-Dhara Centre was approached for which Entry No. 4952 became disputed in Case No. 71/11 and by final order Mamlatdar, Waghodia dated 30.03.2017, the Entry is cancelled against which present appeal has been preferred for registering of 'lis pendens' no stay has been granted. No order of Court has been passed, no evidence has been produced. Before the Mamlatdar & present Court also no such evidence is produced, therefore, the Government of Gujarat by Reso........ dated has directed not to register such 'lis pendens' and have same cannot be registered because of which Mamlatdar, Waghodia's order is just and proper, and therefore, confirmed and below order is passed.
ORDER As there is no provision to enter the 'lis pendens' of the appellant on the basis of above discussion, the same fails.
Order to be communicated to the parties.
If party is aggrieved within 60 days, they can approach the Collector, Vadodara by Revision.
[6] Being dissatisfied with the order passed by the Deputy Collector, the Revision Application No. 151 of 2013 was filed before the Collector, Vadodara. The Collector, Vadodara, by his order dated 21st January, 2015, rejected the Revision Application holding as under:-
On considering the contentions of the parties and papers of Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat Sep 16 02:16:54 IST 2017 C/SCA/16223/2017 ORDER the lower Courts, with reference to Survey No. 643/4, 643/12, 643/15, 643/17, 643/18, 643/34/B, 643/35, 643/46, 643/47 etc of At & post: Madheli, Tal: Waghodia the applicant has filed a suit in the Ld. Civil Court & so that the same is not transferred to a 3rd party, a lis pendens has been registered & the disputed entry is mutated accordingly. Moreover, no interim order has been placed before only of the forum or before us. Thus mere registration of case cannot be entered in the revenue records, which is undisputed, therefore, the contention that applicant was not heard and order was passed has no bearing. The applicant at the time of entry, Appeal on Revision has not produced any such order. The present revision application cannot stand in law, the same is required to be rejected. The order of the lower court is self- clarificatory no interference is warranted. The below order is passed.
ORDER The applicant's Revision Application is rejected and the order passed by the Deputy Collector in the RTS/Appeal/146/2017 dated 15.04.2013 is confirmed.
The order to be communicated to the parties.
The aggrieved party may approach the Special Secretary, Revenue Department (Appeal), Ahmedabad, within 60 days from the date of the order.
[7] Being dissatisfied, the applicants, thereafter, went before the SSRD, at Ahmedabad. The SSRD rejected the Revision Application filed by the applicants herein, thereby, affirming the order passed by the Revenue Authority referred to above.
[8] Being dissatisfied, the applicants are here before this Court with this petition under Article 227 of the Constitution of India.
[9] I have heard Mr. Sahil M. Shah, the learned counsel appearing for the applicants, Mr. P.R. Thakkar, the learned counsel for the private respondents and Mr. Utkarsh Sharma, the learned Assistant Government Pleader for the respondent No.1.
[10] It is not in dispute that the applicants herein have filed Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Sep 16 02:16:54 IST 2017 C/SCA/16223/2017 ORDER a Special Civil Suit No. 45 of 2011 in the Court of learned Principal Civil Judge (Senior Division), Vadodara, for specific performance of oral contract. It appears that inadvertently, the entry was mutated in the record of rights with regard to grant of injunction in favour of the plaintiffs. However, in fact, no injunction was granted by the Civil Court, and ultimately, the entry was corrected. All the applicants want today, that the lis pendens to be registerd as regards the pendency of the civil suit. All the parties have taken the view. It is not permissible to register the lis pendens and the Civil Court has not granted any injunction in favour of the plaintiffs. The erroneous belief in the mind of the revenue authority, is that the lis pendens could be registered only on some injunction which the Civil Court may grant. The erroneous belief is that mere pendency of the civil suit is no ground to register the lis pendens.
[11] The issue raised in this petition is squarely covered by the decision of this Court in the case of Dipak Manilal Patel & Anr. Vs. State of Gujarat & Anr. reported in 2007(2)GLR 1297. The learned Single Judge, has held and observed as paras 3 to 8, as under:-
3. The short facts of the case are that as per the petitioners, they have filed Special Civil Suit No. 209/05 in the Court of learned Civil Judge(SD), Ahmedabad, for the specific performance of the contract and as per the petitioners, the said suit is pending and therefore, the notice of lis pendens was got registered by the petitioners as per the document(Annexure-B), which has been registered vide registration No. 5302 dated 20th June, 2006, of the Joint Sub-Registrar, SRO, Ahmedabad-2, Vadaj. After the document was registered, the petitioners submitted application to the Mamlatdar, Dascroi for entering of the said document. However, Mamlatdar, as per the communication dated 19.07.2006, informed to the petitioners that as per the provisions of Section 18 of the Transfer of Properties Act, there is no provision for registration of lis pendens and therefore, the application of the petitioners cannot be accepted. It is under these circumstances, the petitioners have approached to this Court.
4. Whenever, the Suit pertaining to immovable property is filed, the provisions of Section 52 of the Transfer of Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Sep 16 02:16:54 IST 2017 C/SCA/16223/2017 ORDER Properties Act are applicable on the principles of lis pendens in normal circumstances. However, so far as Gujarat State is concerned, there is amendment by Bombay Act No. 14 of 1939 read with Act No. 57 of 1959, whereby, the notice of pendency of Suit or the proceedings are required to be registered. Section 52 of the Act read with amendment Act No. IV of 1882 for Gujarat State and Maharashtra reads as under :
"52. Transfer of property suit relating thereto-
During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit of proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
"STATE AMENDMENTS:
Whole of Gujarat and Maharashtra Amendment of Section 52 of Act IV of 1882.-Section 52 of the Transfer of Property Act, 1882 shall be renumbered as sub-section (1) of Section 52 of the said Act, and i. In sub-section (1) so renumbered after the word "question" the words and figures "if a notice of the pendency of such suit or proceedings is registered under Section 18 of the Indian Registration Act, 1908", and after the word "property" where it occurs for the second time, the words "after the notice is so registered, shall be inserted; and ii. after the said sub-section(1) so renumbered the following shall be inserted, namely:
"(2) Every notice of pendency of a suit or proceeding referred to in sub-section(1) shall contain the following particulars, namely:
(a) the name and address of the owner of immovable property or other person whose right to the immovable property is in question;
(b) the description of the immovable property, the right to which is in question.
(c) the court in which the suit or proceeding is pending;Page 6 of 8
HC-NIC Page 6 of 8 Created On Sat Sep 16 02:16:54 IST 2017 C/SCA/16223/2017 ORDER
(d) the nature and title of the suit or proceedings; and
(e) the date on which the suit or proceeding was instituted."(Bombay Act 14 of 1939, Sec.3)"
5. If the provisions of Section 52 read with aforesaid amendment for Gujarat State are considered, the principles of lis pendens would apply to a transaction if entered after institution of Suit only, if such notice of lis pendens is registered under the Indian Registration Act, 1908 and as per the provisions of the amendment, the notice of pendency of the suit should contain the details as per sub-section 2 of the amendment in Section 52, which is applicable to the Gujarat State. The essential purpose of the aforesaid amendment is to see that any person who may be interested to purchase the property when undertakes the title search of the property with the sub-registrar, the person concerned would be put to notice that a particular suit is pending before the competent Court and therefore, he may not be misguided or if with conscious knowledge, the person concerned has purchased the property, the purchaser may not be in a position to contend that he was not aware about the pendency of the litigation and consequently, the Suit may not be frustrated or the principles of lis pendens can have its full effect as per the provisions of Transfer of Properties Act.
6. Therefore, it appears that the stand of the Mamlatdar that such documents is not as per the provisions of the Transfer of the Properties Act is not correct and once a registered document is there, pertaining to the property in question, it is required for the Mamlatdar to enter the same in the revenue record of the Government. Of course, after undertaking the procedure, as may be required under the Bombay Land Revenue Code or other relevant law of giving notice to the affected party, and thereafter, to mutate the entry.
7. In view of the aforesaid, the order dated 19.07.2006 passed by Mamlatdar(Annexure-C) is quashed and set aside with the direction that Mamlatdar shall treat the document as valid as per the provisions of the Transfer of Properties Act read with the provisions of India Registration Act and shall further proceed in accordance with law for entering the same in the relevant record after undergoing the procedure as required under the Bombay Land Revenue Code read with the provisions of Gujarat Land Revenue Rules.
8. It is made clear that by the aforesaid direction, no Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat Sep 16 02:16:54 IST 2017 C/SCA/16223/2017 ORDER additional right shall be read be read as created in favour of either parties to the proceedings of Civil Suit No. 209/05 and all rights and contentions of both the sides in the suit shall remain open and at the time when the entry is to be mutated based on the documents of lis pendens, both the sides shall be at the liberty to raise all contentions as may available in law.
[12] The judgment of Dipak Manilal Patel (supra) was followed by the Co-ordinate Bench in the case of Yagneshbhai Ravjibhai Patel Vs. State of Gujarat & Ors. in Special Civil Application No. 1733 of 2016 decided on 8th February, 2016.
[13] In the case of Manubhai Chaturbhai Patel Vs. State of Gujarat & Ors. in Special Civil Application No. 7315 of 2016 decided on 19th July, 2016, this Court followed the judgment of Dipak Manilal Patel (supra) and issued necessary direction for registration of the lis pendens.
[14] In view of the above, this petition is allowed.
[15] The Mamlatdar, Vaghodiya, District- Vadodara is directed to apply the law laid down in Dipak Manilal Patel (supra) and carry out the necessary mutation in the record of rights.
[16] It is clarified that by virtue of the lis pendens, no additional right is treated to have been created in favour of the applicants or either of the parties to the Special Civil Suit No. 45 of 2011, and all the rights and contentions of the parties in the suit shall remain open.
[17] With the above, this petition is disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) M KUMAR Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Sep 16 02:16:54 IST 2017