Gujarat High Court
Vinubhai Mohanbhai Zalavadiya vs State Of Gujarat on 26 October, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/10858/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10858 of 2020
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 No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to No
the interpretation of the Constitution of India or any order made
thereunder ?
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VINUBHAI MOHANBHAI ZALAVADIYA
Versus
STATE OF GUJARAT
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Appearance:
MR MEHULSHARAD SHAH(773) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,10,11,13,14,15,16,17,18,19,2,20,3,4,5
MR JIGAR M PATEL(3841) for the Respondent(s) No. 12
MR KISHANKUMAR R MAURYA(10580) for the Respondent(s) No. 7
MR.D K.PUJ(3836) for the Respondent(s) No. 6,8,9
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CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 26/10/2020
CAV JUDGMENT
1. This petition was heard at length and arguments were concluded on 8.10.2020. The respective counsels had agreed that the petition be treated to have been heard finally.
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2. Rule returnable forthwith. Concerned learned advocates appearing for the respective parties waive the service.
3. Heard Mr.Mehul Sharad Shah, learned counsel for the petitioner. Mr.K.M. Antani, learned AGP for the respondent Nos.1 to 5, Mr.Percy Kavina, learned Senior Counsel with Mr.D.K. Puj, learned advocate for respondent Nos.6 and 7, Mr.Rashesh Sanjanwala, learned Senior Counsel with Mr.D.K. Puj, learned counsel for respondent Nos.8 and 9, Mr.D.C. Dave, learned Senior Counsel with Mr.Jigar M. Patel, learned counsel for respondent No.12. Though served, nobody appeared for the rest of the respondents.
4. This petition, under Article 226 of the Constitution of India is filed with the prayer to quash and set aside the order dated 20.8.2020 passed by the respondent No.1 - SSRD in revision No.65 of 2020. The prayer is that the order of the Page 2 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT District Collector dated 24.6.2020 and the order of the first authority i.e. the Mamlatdar dated 23.1.2019 certifying the entry No.16213 mutated in response to the registered sale deed dated 11.5.2017 in favour of the petitioner be restored. The SSRD had quashed the orders of the Mamltadar and the Collector which certified the entry 16213 in favour of the petitioner.
5. The facts in brief are as under:
* The dispute pertains to the land situated at survey No.663/1 at Uvarsad, District Gandhinagar. According to the petitioner who has made out a case by way of a pedigree at page 6 of the petition, the land belonged to one Ratuji Adaji Thakore. He had two sons, Chhganji and Mangaji. On the death of Ratuji Adaji, the pedigree is shown as under:
Ratuji Adaji Thakore Page 3 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT | ===================================== Chhaganji Mangaji | | =============== ========== Punjaji, Amba, Daiben Somaji | | =========================== ======== Resham, Baldevji, Mashram, Ramaji,Neni, Jasuji | ========================================= Hiraben, Dulaji, Madhaji, Chanchiben
6. On the death of Ratuji Adaji, the name of Mangaji Ratuji was recorded as owner of the land and through mistake, the brother Chhaganji Ratuji was shown as a tenant. On the death of Mangaji, in the year 1948, revenue entry No.32085 was recorded on 26.5.1948. Though Chhaganji was shown as Ganotiya he was in-fact a co-owner but his name was so continued as a co-owner. Page 4 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT According to the petitioners, on 3.11.1952, the name of Chhaganji Ratuji was shown as a tenant and a revenue entry No.4135 showing him as a tenant was recorded in the revenue records. This was certified on 30.1.1954.
* According to the petitioner, in proceedings u/s.32(G) of the Tenancy Act, proceedings were initiated and Chhaganji Ratuji's son Punjaji Chhaganji was offered land for sale. The sale failed. Punjaji Chhaganji did not accept the offer for sale and on 28.5.1962, the sale was declared ineffective. Entry No.5578 was mutated on 13.3.1967. Entry No.6215 on 15.11.1968 shown that though Punjaji Chhaganji was a tenant, he failed to accept the offer of sale, his tenancy was shown to be terminated and it was shown that after proceeding u/s.32(P)(4) and in accordance with the provisions of sec.32(P) (2)(C), land was offered for sale to Somaji Page 5 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT Thakor who also failed to accept the sale and therefore on 15.11.1968, the land vested in the government. The revenue entry certifying the fact that the land vested in the government was certified on 20.4.1969. The land was therefore running in the name of the State Government.
* According to the petitioner, the revision application before the SSRD, the respondent No.6 and 7 where heirs of Somaji and the heirs of Punjaji contacted the petitioners for sale of land in order to record such sale, several documents were executed namely; a Bana Chithhi on 20.2.2004, 21.2.2004, a memorandum of understanding for Banakhat and a registered Banakhat was entered into between the heirs of Punjaji, the branch of Chhaganji and heirs of Somaji and between the petitioners on 30.3.2004. By the aforesaid Banakhat, 28.10.2004, a receipt of Page 6 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT consideration was also signed between the parties for having received full consideration for sale of the land in question. According to the petitioners, the Banakhat recorded the fact that it was decided to sell the land to the petitioner in the year 2004 and a Banakhat was entered into for consideration of a sum of Rs.75,264/-. During the course of these proceedings also, a power of attorney was executed by the branch of heirs of the deceased by the heirs of Somaji and the heirs of Punjaji that is why the revision applicants before the SSRD being applicant Nos.1 and 2 and the respondent Nos.1 to 12 before the SSRD by which a power of attorney was given to the petitioners to deal with the lands in question inasmuch as to initiate proceedings under the Tenancy Act to have the name of the family together with the name of the erstwhile tenant restored in the revenue record so as to complete the sale Page 7 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT proceedings by virtue of the Banakhat of March, 2004. The case of the petitioner subsequently is that by virtue of entering into these documents between the heirs of Punjaji and Somaji, orders under the Tenancy Act by the Mamlatdar were challenged before the Gujarat Revenue Tribunal and the Revenue Tribunal by an order dated 10.5.2017 recognized that the land was in the joint name of the Somaji Mangaji Ratuji that are the ancestral of Dhulaji Madhaji and Punjaji Chhganji Ratuji who was the erstwhile tenants. The revenue record reflected the names of Somaji Mangaji Ratuji and Punjaji Chhganji Ratuji pursuant to the order of the Gujarat Revenue Tribunal dated 10.5.2017.
* According to the petitioner, since the heirs of both branches i.e. Somaji and Punjaji had executed the documents namely; the Bana- Page 8 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT Chithhi cum Receipt dated 21.2.2004, the declaration dated 29.3.2004 and a Banakhat dated 29.3.2004, by virtue of the land now restoring in the joint name of both the branches of Punjani and Somaji, the Banakhat of 2004 was given the natural effect by entering into a sale deed on 11.5.2017 in favour of the petitioner. Based on the registered sale deed in favour of the petitioner on 11.5.2017, preceding the registered Banakhat of 28.10.2004, the Mamlatdar certified entry No.16213 by his order dated 23.1.2019 in favour of the petitioner. The heirs of Somaji, respondent Nos.6 and 7 challenged these entries before the Revenue Authorities, the Deputy Collector. The Deputy Collector by his order dated 27.5.2019 reversed the order of the Mamlatdar dated 23.1.2019 in favour of the respondent Nos.6 and 7 herein. According to the Deputy Collector when the sale deed of Page 9 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT 11.5.2017 was executed based on the power of attorney of 29.3.2004 and 30.3.2004 and the revenue entry was so made on 23.1.2019, it was found by the Deputy Collector that the vendors of the sale deed namely; vendor No.7 Hiraben, the widow of Somaji had died on 3.1.2008 and vendor No.10 Ganpatji Baldevji had died on 17.5.2007. The declaration given by the petitioner that the sale deed was entered into by all the heirs of the two branches as living was found to be wrong. Aggrieved by the order of the Deputy Collector, the petitioner approached the Collector and the Collector by the order dated 24.6.2020 restored the entries in favour of the petitioner holding that once a registered sale deed was entered into between the parties and there was nothing in the revenue records to show that the vendor Nos.7 and 10 had died, the order of the Deputy Collector was bad.
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7. On a revision filed by the SSRD by the respondent Nos.6 and 7, the Special Secretary has held that at the time when the sale deed was entered into vendor Nos.7 and 10 were dead, there could not have been power of attorney in existence based on which the sale deed could have been executed and therefore the entry of 16213 was reversed.
8. Mr.Mehul S. Shah, learned advocate appearing for the petitioners would submit that the order of the SSRD was beyond jurisdiction and, therefore several defects were pointed out by Mr.Shah to submit that it was not within the domain of the Special Secretary to get into the validity of the sale deed. Mr.Shah would made the following submissions:
* Mr.Shah would submit that when the powers of attorney was used for the registered sale deed, though vendor Nos.7 and 10 Hiraben Page 11 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT and Ganpatji had expired, the petitioner was not aware of the death of Hiraben and he was not so made known of the death.In all 7 heirs of Somaji and 10 heirs of Punjaji had assigned the petitioner the right to contest before the Gujarat Revenue Tribunal and on the basis the contest before the Gujarat Revenue Tribunal, on 10/5/2017, an order was passed in favour of the family of Punjaji and Somaji declaring them as joint owners.
He would rely on the affidavit filed by the daughter of Somaji namely; Chanchiben at page 219 to submit that a pedigree was shown in the affidavit and it was specifically shown in the affidavit that all the heirs were alive. This affidavit was made by Chanchiben on 27.1.2011. Even Ganpatji's father Baldevji had filed an affidavit for the purpose showing Hiraben as being alive.
* He would further submit that assuming for Page 12 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT the sake of argument that of 17 vendors through the power of attorney, 2 had died, it would not make a power of attorney and the sale automatically void. He would submit that power of attorney was for consideration and, therefore, was protected by the provisions of sec.202 of the Contract Act.
* He would further submit that there was no dispute regarding execution of power of attorney and no allegation about the fraud of the signatures, it was not the domain the Special Secretary to examine the validity of the power of attorney and such documents namely; the power of attorney and the sale deed have not been a subject matter of challenge before civil proceeding, the only duty of the revenue authorities was to record the revenue entry in favour of the petitioner in view of the sale deed dated 11.5.2017.Page 13 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT
* Mr.Shah would further submit that the reliance placed by the Special Secretary, Revenue Department on the judgments of the Rajasthan and Karnataka High Court on the point of power of attorney were misconceived. The order of the Special Secretary, Revenue Department was an unreasoned order. Mr.Shah in support of his submission that when power of attorney is appreciated in context of sec.202 of the Act, even after the death of the person who was authorized there is no termination. In support of his submissions with regard to the question of the power of attorney being effective and also on the question that when there is a registered sale deed produced before the authorities, the authority is bound to certify such entry, Mr.Shah relied on the following decisions:
(1) Bhagwanbhai Karamanbhai Bharvad v Arogyanagar Cooperative Page 14 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT Housing Society reported in 2004(1) GLR 506 (2) Jalaram Developers v. Nilaben Mahendrakumar Vaidya reported in 2010(1) GLH 354 (3) Her Highness Maharani Shantadevi v. Savjibhai H. Patel reported in 1998(2) GLH 70 (4) Seth Loon Karan Sethiya v. Ivan E. John reported in AIR 1969 SC 73 (5) Navuji Lalji Vaghela v. State of Gujarat reported in 2011(4) GLR 3636 (DB) (6) Gulabbhai Ravjibhai Patel v.
Badriprasad Vithalrao Bende
reported in 2011(3) GLR 2472
(7) Gandabhai Dalpatbhai Patel v.
State of Gujarat reported in 2005(2) GLR 70 (8) Chhimiben wd/o Hirabhai Gopalbhai v. State of Gujarat reported in 2006(3) GLR 2455 (9) Jhaverbhai Savjibhai Patel through POA Ashok J. Patel v. Kanchanben Nathubhai Patel reported in 2005(3) GLR 2233 (10) Jhaverbhai Savjibhai Patel through POA Ashok J. Patel v. Kanchanben Nathubhai Patel reported in 2005(3) GLH 657 (11) Nathubhai Merman Darji v. Special Secretary (Appeals) reported in 1996(3) GCD 691 Page 15 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT * Mr.Shah made extensive submissions by drawing the attention of this Court on the memo of the petition and submitted that before the SSRD the hearing was kept on 22.7.2020. The Special Secretary not being available, the matter was then adjourned to 23.7.2020. Mr.Shah would submit that it was specifically understood that the hearing was in respect of only the Stay Application.
The Special Secretary proceeded to hear the matter finally. In Mr.Shah's submission, the Special Secretary ought not to have proceeded further to hear the application finally without calling for the records and proceedings from the Court below. In doing so, the Special Secretary committed an error of law. In support of this submission, he relied on the decision in the case of Zabir Mahmad Hafezi Ismail Patel v. State of Gujarat reported in 1996(2) GLH 675. Page 16 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT * Mr.Shah would further submit that when it is fairly established by several decisions as cited above that the registered sale deed entry must be recorded, it was the authority was bound to follow of the higher courts and not following such decisions when the Courts either recognized the law position or ignore such position, a writ of certiorari in such a case would lie. He would rely on the following decisions in support of this submission:
(1) Baradakanta Mishra Commissioner of Endowments v. Bhimsen Dixit reported in 1973(1) SCC 446.
(2) East India Commercial Company Limited v. Collector of Customs, Calcutta reported in AIR 1962 SC 1893.
(3) T.C. Basappa v. T.Nagappa and another reported in AIR 1954 SC 440 & (4) Surya Dev Rai v. Ram Chander Rai and others reported in 2003(6) SCC 675. Page 17 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT * Mr.Shah would submit that even the revision applicants before the SSRD acted malafide inasmuch as that when they challenge the order of the Mamlatdar and when succeeded before the Deputy Collector in setting aside the revenue entry, when the Deputy Collector passed an order on 23.5.2019, in July, 2019, the respondent Nos.6 and 7 herein executed a sale deed in favour of respondent Nos.8 and 9 of the same land in question. The petitioner therefore is compelled to file a Special Civil Suit No.212 of 2019. The observation of the SSRD in holding that the entry pursuant to the registered sale deed is not required to be mutated is an action by which the Special Secretary committed a grave error to hold that such an order is subject to the order in the Special Civil Suit.
* Mr.Shah would submit that when the sale deed was executed in first in point of time in favour of the petitioner by all the family members Page 18 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT including the present respondent Nos.6 and 7, the action of the respondent Nos.6 and 7 to execute a subsequent sale deed was bad. Once, by the Gujarat Revenue Tribunal's order dated 10.5.2017, the pave was clearly by holding the family to be the owner of land and when the power of attorneys were executed in 2004 and a Banakhat was so executed for future sale deed, it was not open for the respondent Nos.6 and 7, the family of Punjaji of Somaji who had become exclusive owners of the land, now to say that these revenue entries pursuant to the registered sale deed was bad.
9. Mr.P.C. Kavina, learned senior advocate has appeared for the respondent Nos.6 and 7, who were the original revision applicants before the Special Secretary. He would submit that the petitioner is not entitled to a writ of certiorari inasmuch as the exclusive jurisdiction is vested in the revenue authorities to decide the question Page 19 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT which the authority has decided. According to Mr.Kavina, the petitioner has failed to show as to how there is an error of jurisdiction. Mr.Kavina would submit that reading of the order of the Special Secretary, Revenue Department would indicate that extensive reasons have been given by the Special Secretary to hold how the entry 12613 in favour of the petitioner could not be entered pursuant to the sale deed dated 11.5.2017. He would submit that the Special Secretary, Revenue Department was correct in reversing the entry 16213 in favour of the petitioner because of the glaring effects in the sale deed. * He would submit that the Special Secretary, Revenue Department noticed the following glaring defects in the sale deed namely:
(A) that the sale deed was executed by Hiraben widow of Somaji Thakor as vendor No.7 on 11.5.2017. As a matter of Page 20 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT fact, Hiraben had passed away on 3.1.2008.
(B) Ganpatji Baldevji Thakor had executed a sale deed as vendor No.10 on 11.5.2017. As a matter of fact, he had died on 17.5.2007.
(C) On the date when the sale deed was executed on 11.5.2017, the land was vested with the State Government and the name of the Collector was appearing in village form 7/12. If that be the position, the respondent Nos.6 and 7 and a family had no authority to sale the land which did not belong to them. There could not have been a sale in favour of the petitioner of the land vested in the Government. (D) In the sale deed, according to Mr.Kavina, a total consideration of Page 21 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT Rs.75,264/- was shown has been paid by Cash on different dates. The Jantry Value of the land was Rs.1,88,100,00/- and, therefore a stamp duty of 4,95,000/- was used.
(E) The sale deed that the petitioner
agreed to purchase the land was
Banakhat on 21.2.2004. The agreement to sell was registered on 28.10.2004. On that date, the land was vested with the government and the name of the Collector was appeared in the revenue record. No transaction with regard to the transaction therefore could have been entered into between the vendors and the petitioner.
(F) The petitioner had filed an affidavit while executing the sale as a power of attorney of the vendors. In the affidavit, he has stated that all the Page 22 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT vendors were arrived when in-fact they had died in the year 2007 and 2008. The Special Secretary found the affidavit to be misleading.
(G) Even after having executed a registered sale deed on 11.5.2017 no efforts were made by the petitioner till October, 2018 for registered the sale deed. (H) Mr.Kavina further submitted that what the Collector failed to appreciate and which the Deputy Collector rightly observed was that entry No.16212 was entered on the previous date i.e. on 22.1.2019 by which names of Dhulaji Somaji, Madhaji Somaji and Chanchiben Somaji were inserted into the revenue records as the heirs of Somaji Thakor. The entry specifically mentioned that Somaji Mangaji Thakor had died on 2.1.1995 and Page 23 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT the heirs namely; Hiraben Somaji Thakor had died on 3.1.2008. The said entry was certified just prior to the date of the entry of the registered sale deed which was certified on 23.1.2019. The revenue entry 16212 specifically showed Hiraben as dead and which was certified on 22.1.2019. The Collector ignored this specific aspect and, therefore the Special Secretary was right in reversing the revenue entry subsequent to that date in favour of the petitioner namely; 16213 dated 23.1.2019.
(I) Mr.Kavina would submit that the Special Secretary categorically came to the conclusion and observed that there was a fraud that was played before the Collector and the Mamlatdar and, therefore, the order was rightly passed setting aside the revenue entry in favour of the petitioner. Page 24 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT
10. In context of the submissions with regard to sec.202 of the Contract Act coming into the rescue of the petitioner, Mr.Kavina would rely on sec.201 of the Contract Act. Relying on sec.201 of the Act, Mr.Kavina would submit that an agency is terminated by the principal revoking his authority or by the agent renouncing business of the agency or by the business or agency being completed or by either the principal or the agent died. He would therefore submit that the reliance placed on the decision by the Special Secretary on the judgment of the Madras High Court in the case of Garapati Venkanna v. Mullapudi Atchutaramanna and others reported in AIR 1938 MAD 542.
11. Mr.Kavina would also relying on sec.6 of the Transfer of Property Act to submit that that consideration in Cash paid by the petitioner for an agreement to sell executed for a land which vested in the government violates the provisions of Page 25 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT sec.6(a) of the Act. He would submit that when the transaction allegedly took place in the year 2004 for payment of cash in years 2004, 2005 and 2010 when the land vested in the government, there was no right of transfer for the respondent No.6 of which the petitioner was aware of. He relied on the two decisions of Supreme Court namely; Ram Pyare v. Ram Narain reported in 1985(2) SCC 162 Rampyare v. Ramnarayn and Kartar Singh (deceased) by Lrs and others v. Smt.Harbans Kaur reported in 1994(4) SCC 730.
12. Mr.Kavina extensively relied on the findings of the order of the Special Secretary and submitted that no fault can be found with the order of the Special Secretary.
13. Mr.Rashesh Sanjanwala, learned Senior Counsel with Mr.D.K. Puj, learned counsel appeared for respondent Nos.8 and 9 and adopted the Page 26 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT submissions of Mr.Kavina and submitted that the order of the Special Secretary is just and proper. He submitted that mutation entry has been made in favour of the respondent Nos.8 and 9 on 24.7.2019 pursuant to the sale deed entered into by the respondent Nos.6 and 7. They had entered into a sale deed after the order of the Deputy Collector in their favour. The revenue entry entered in their favour is a subject matter of a challenge in a revenue proceeding before the Collector by the petitioner himself. Mr.Sanjanwala would submit that even the petitioner has now challenged before the revenue proceedings, the revenue entry made in favour of the respondent Nos.8 and 9.
14. Mr.Dhaval C. Dave, learned Senior Counsel with Mr.Jigar M. Patel, learned counsel appeared for respondent No.12. He would submit that he supports the cause espoused by the petitioner. He would further submit that predominant aspect Page 27 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT which weighed with the Special Secretary in passing the impugned order was to the effect that the concerned power of attorney on the basis of which the petitioner executed the sale deed could not be a subsisting power of attorney as two of the executors had died in the years 2007 and 2008. Mr.Dave relied on the decision in the case of Gandabhai Dalpatbhai Patel v. State of Gujarat reported in 2005(2) GLR 1370, Chhimiben wd/o Hirabhai Gopalbhai v. State of Gujarat reported in 2006(3) GLR 2455 and in the case of Jhaverbhai Savjibhai Patel through POA Ashok J. Patel v. Kanchanben Nathubhai Patel reported in 2005(3) GLH 657, the judgments have been cited by Mr.Mehul Sharad Shah that it was not within the jurisdiction of the SSRD to examine the validity of the documents. He would submit that any inquiry to such aspect would fall within the exclusive domain of the Civil Court.
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15. Mr.Dave would submit that even reliance placed on Sec.135(D)(8) of the Gujarat Land Revenue Code to support the view is wholly misconceived. According to Mr.Dave, Sec.135(D)(8) of the Act would come into play when the transaction for which the mutation is sought in the revenue record is found per se to be prohibited. It would not come in the way when the transaction is sought to be assailed which are issues within the domain of the Civil Court. It is for the Civil Court to decide whether the concerned power of attorney was validly subsisting or not on the date of use thereof by the petitioner. The order of the SSRD countered to the settled proposition of law that it had no jurisdiction to touch the issue which falls within the domain of the Civil Court.
16. Mr.Dave relied on the decision in the case of T.C. Basappa v. T.Nagappa and another reported in AIR 1954, SC 440 which was referred to in the decision of the Supreme Court cited by Mr.Mehul Page 29 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT Shah. He invited the attention to paragraph Nos.37 and 38 of the decision so cited by Mr.Shah and supported the submission that a wrong decision certainly requires consideration of interference under a writ of certiorari.
17. Mr.Antani, learned AGP invited the attention of the Court to the provisions of Gujarat Land Revenue Code. Heavy reliance was placed by him on provisions of Sec.135 of the Land Revenue Code. He would submit that reading sec.135(D)(8) of the Act would indicate that where the certifying officer has reason to believe that mutation entries are contrary to the provisions of the Act, he shall not certify the entry. Reading the order of the Special Secretary, Mr.Antani's submission would indicate that the Special Secretary had reason to believe that entry could not be mutated pursuant to the registered sale deed of 11.5.2017 because of the fact that on the date when the registered sale deed was entered pursuant to the power of Page 30 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT attorneys of 2004 and 2017, vendor Nos.7 and 10 had died in the years 2007 and 2008 respectively.
18. Considering the submissions made by the learned counsels of the parties, let us examine the validity and correctness of th order of the Special Secretary, Revenue Department which is under challenge before this Court.
19. This would require at the cost of repetition a narration of few facts.
20. As is evident from the pedigree produced hereinabove, the land was a family property belonging to Ratuji Ajaji Thakor. Mangaji Ratuji Thakor and Chhaganji Ratuji Thakor succeeded as Ratanji Adaji. By mistake the name of Chhaganji Ratanji Thakor was shown a tenant whereas that of Mangaji Thakor was shown as the owner of the land by the Revenue Entry of 23.2.1948. On the death of Chhaganji Mangaji Page 31 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT Thakor, the name of Somaji Mangaji Thakor was entered into.
21. What is also evident from the facts on hand is that Chhaganji Mangaji Thakor's name was shown in the revenue records as Ganotiya. Proceedings were held u/s.32(G) of the Tenancy Act and Chhaganji Ratuji Thakor i.e. the ancestral line of Punjaji was declared as tenant. Offer was made for sale of land to Punjaji Chhaganji which he could not honour. Subsequently when the offer was made to branch of Somaji i.e. to Chhaganji Somaji Thakor, he also did not honour the offer. Revenue records indicated therefore that on 15.11.1968 entry No.6215 was mutated in the revenue records for taking over possession of the land. The land vested in the State Government and the name of the State Government through the Collector was shown by such entry No.6215.
22. By an order dated 12.2.1988 passed u/s.32(D), Page 32 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT the Mamltadar, Gandhinagar by his order No.197798 of 1988 ordered vesting of land in the State Government and the right of the branch of the family namely of that of the tenant Chhaganji stood extinguished. On 29.2.1988, revenue entries were made to the effect and the land vested in the State Government. Such vesting of land continued from the year 1988 to 2004, this vesting of land in the State Government from the year 1988 to 2004 was not a subject matter of a challenge and the name of the Collector who shown in the State Government revenue records. It is the case of the petitioner that a power of attorney was entered into between the two branches namely that of Punjaji, the erstwhile tenant and Somaji the owner of the land on 29.3.2004 which was notarized on 30.3.2004 by the revision applicants before the Special Secretary i.e. the branch of Somaji and that of Chhaganji. The power of attorney was entered into in the year 2004 when the land vested in the Page 33 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT government. On the basis of power of attorney the petitioner approached the revenue authorities under the Tenancy Act by challenging the tenancy proceedings by filing appeal No.19/2009 and the order of 17.4.1988 was challenged. The appeal was decided on 24.8.2012 against the branch of Punjaji. That was carried to the Gujarat Revenue Tribunal by revision No.465/2016, the revenue tribunal by an order dated 10.5.2017 held that the order of 24.8.2012 was bad, the branch of Punjaji erstwhile tenant and the branch of Somaji were part of the same family and, therefore, the order of vesting land in the State Government was set aside. The order of the Revenue Tribunal was dated 10.5.2017. Based on this order of 10.5.2017, it is apparent that the petitioner entered into a registered sale deed on 11.5.2017 armed with the order dated 10.5.2017 of the revenue department. The Deputy Collector and the Special Secretary found that when the sale deed was entered into 11.5.2017 on the power of Page 34 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT attorney of 29.3.2004, Hiraben, vendor No.7 had died on 3.1.2008 and Ganpatji Baldevji Thakor, vendor No.10 who had also died. The power of attorney was therefore unenforceable. What is also evident from the revenue proceedings is that after the order of Gujarat Revenue Tribunal of 10.5.2017, entry No.15510 was entered on 12.6.2017 which was certified on 5.8.2017. The Mamlatdar carried out a rectification of the entry on 11.8.2017 in accordance with the orders of the Gujarat Revenue Tribunal. The name of Punjaji Chhaganji was removed and that of Somaji Thakor i.e. the ancestors of the revision applicants was entered into on 11.8.2017 by entry No.15574. The entry was certified on 4.10.2017. On 22.10.2017 entry No.16212 was entered entering the name of Dhulaji Somaji respondent No.6, Madhaji Somaji, respondent No.7 and sister Chanchiben as heirs of Somaji. This entry was made on the basis that Somaji Mangaji had died on 2.1.1995 and that Hiraben Somaji had died on Page 35 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT 3.1.2008. The revenue entries showing such rectification is on record page No.356 of the paper book. That entry made certified prior to the date of the present revenue under challenge on 22.1.2019 categorically recorded the fact that such an entry was made rectifying and entering the name of Dhulaji Somaji and Madhaji Somaji as the widow of Somaji. Hiraben had died on 3.1.2008. In other words from the aforesaid proceedings in the revenue records, what is indicated is that on the date when the revenue entries were rectified to show the name of the branches of Punjaji and Somaji pursuant to the order of revenue tribunal such rectification was only made to the post the sale deed of 11.5.2017. Therefore, right from a 1988 till the date post the sale deed of 11.5.2017 the revenue records showed the name of the State / Collector as the holder of land. If that be so, it cannot be said that the transaction of sale via-a- vis the respondent Nos.6 and 7 and that of the petitioner could be held valid because on the date Page 36 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT when the sale deed was entered into i.e. Banakhat and the registered sale deed of 11.5.2017 admittedly the land vested in the State Government.
23. It is under these circumstances that the order of the Special Secretary the to be appreciated.
24. Perusal of the record would indicate that according to the Collector, the land in question i.e. Uvarsad survey No.663/1 had revenue entry No.16213 pursuant to the sale deed of 11.5.2017. That order was passed by the Mamlatdar on 23.1.2019. The Mamlatdar held that as far as the contention of the respondent Nos.6 and 7 the revision applicants who succeeded before the SSRD were wrong in assailing the affidavit filed by the petitioner declaring that vendor Nos.7 and 10 were alive was a subject matter which could be decided by the Civil Court. The Mamlatdar held that it was not within his domain to enter into the Page 37 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT civil proceedings and that can best be decided by the Civil Court. It is in light of these proceedings that the Special Secretary relied on the resolution dated 1.12.2003 and the provisions of sec.135(D) (8) of the Act. Sec.135(D)(8) of the Gujarat Revenue Code reads as under:
"135(D) Register of mutations and register of disputed cases:
(8) Where the certifying officer has a reason to believe that such mutation entry violates or contravenes any of the provisions of the Act or any other Act, he shall not certify such entry and shall intimate the same with reasons in writing to the person concerned."
25. What is evident on reading from Sec.135(D)(8) of the Gujarat Land Revenue Code is that where the certifying officer has reason to believe that the mutation entry violates or contravenes any of the provisions of the Act, he shall not certify such entry. The Special Secretary found that he had reasoned to believe that entry No.16213 could not be certified for the following reasons: Page 38 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT
* The Mamlatdar and the Deputy Collector and the Collector failed to appreciate that the power of attorney executors namely; Hiraben and Ganpatji had died on 23.1.2008 and 17.5.2007, the Death Certificates of their deaths were produced before the Deputy Collector. In view of the vendor Nos.7 and 8 of the sale deed namely the power of attorney givers were dead at the time of the execution of power of attorney. The power of attorney was non-existent.
* The contention of the Mr.Mehul Shah that the provisions of section 202 would protect the petitioner in view of the fact that the power of attorney was for consideration is misconceived in view of the provisions of section 201 of the Contract Act.
Page 39 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT * In the opinion of this Court, reliance placed on the decision in the case of Garapati Venkanna v. Mullapudi Atchutaramanna and others decided on 14.12.1937 by the learned Single Judge of the Madras High Court is surely proper on behalf of the Special Secretary. It will be in the fitness of things to reproduce the relevant paragraphs of the decision of Madras High Court in the case of Garapati Venkanna (Supra), paragraph Nos.5 & 6 thereof read as under:
"5. The more vital question is the one arising from Ex. F. In the first place, I am not prepared to agree with the appellant's earned Counsel that it cannot be construed as a power-of-attorney. It provides for the 6th plaintiff filing the suit himself and conducting it, and for the properties, when recovered, being divided, Page 40 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT in two equal moieties between him and the reversioners. I see no reason why a narrow meaning should be put upon this document. But there is a far more serious objection, which I think ought to prevail.
The power-of attorney was executed by six persons, of whom Brahmayya (junior) was one, he being entitled to one-half of the property; but before the power could be acted upon, the latter died. Under Section 201 of the Contract Act, an agency is terminated by the death of the principal.
The question that then arises is, where the agency was created by more than one principal, does the death of one or some of them terminate the agency? It has been held in several English cases that the death of one or more of the principals revokes the agent's authority, although it has been explained in a decision of the Calcutta High Court, Re Sital Prosad (1916) 21 C.W.N. 620, that the rule is not one of universal application, the question being one of intention to be determined upon the terms of the document and from Page 41 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT the surrounding circumstances. In Gee v.
Lane (1812) 15 East. 592 : 104 E.R. 967 and Raw v. Alderson (1817) 7 Taunt. 453 :
129 E.R. 182, it was held that a joint warrant of attorney given to enter judgment "against us" does not authorise the entering up of judgment, on the death of one, against the survivor only. In Tasker v. Shephard (1861) 6 H. & N. 575 :
158 E.R. 237, where the question was as to the effect of the death of a member of a partnership firm, the Court held that the contract was subject to the condition that it was to be in force so long as all the parties lived. In Bowstead's book, it is stated that the agency is determined by the death of any one of the partners before the expiration of the period fixed.
(Law of Agency, 7th Ed., 1924.) In the Calcutta case, already referred to, the property belonged to a joint Hindu family and the intention of the joint power-of- attorney appearing to be to facilitate joint loans by the mortgage of the joint estate, it was held that the death of one member Page 42 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT did not revoke the agency. Re Sital Prosad : Badrinarain Agarwalla v. Raja Brijnarain Roy (1916) 21 C.W.N. 620. But the facts here are entirely different. Brahmayya (junior) had a distinct half right in the property and I am unable to deduce from the terms of Ex. F that it was intended to be in force even in the event of his death.
6. But it is contended that this is an agency coupled with interest and is saved by Section 202 of the Contract Act. This argument cannot prevail. Ex. F contemplates the agent incurring costs in future for the filing and the conducting of the suit. The principle applies only to cases, where authority is given for the purpose of being a security or a part of the security, and not to cases where the interest of the donee arises afterwards and incidentally; in such cases there is no authority coupled with an interest, but an independent authority, and an interest subsequently arising Smart v. Sandars (1848) 5 C.B. 895 : 136 E.R. 1132. Illustration
(b) to the section refers to a consignment made after the factor's advance and with an express request by the principal to repay himself out of the price of the goods (see Pollock and Mulla, Commentaries, under Section 202 and the Indian Cases cited there). I am therefore of the opinion that the 6th plaintiff's agency had become revoked before the date of the suit and that the plaint that he filed is thus an invalid and ineffectual document. That would be sufficient to dispose of the appeal, as in this view the suit fails."
* The Special Secretary, Revenue Page 43 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT Department also relied on the decision dated 1.3.2007 of the Rajasthan High Court by the learned Single Judge in the case of Prahlad and others v. Lad Devi and others. It will be in the fitness of things to reproduce paragraph Nos.9, 10 ad 11 thereof which read as under:
"9. A power of attorney granted by the donor to the donee is operative and effective only during the lifetime of the donor. The donor and donee stand in relationship of master and agent. Since the actions done by the donee are deemed to be actions done on the part of the donor, naturally such a power of attorney cannot be operative or be effective after the demise of the donor. Therefore, the power of attorney granted by Mr. Jain on 28.5.1997 came to an end on 20.10.1997 upon his demise.
10. It is also not conceivable that the appellants did not know about the death of Mr. Jain. For, the power of attorney is given to a person who is person of truth. Moreover, according to the testimony of respondent No. 2, Ashok Kumar, the land in dispute is used for agricultural purpose; it has been given to the appellant No. 1 on a sharing basis. Thus, the appellant No. 1 and the respondents share a close relationship with each other. Therefore, the contention raised by the appellant No. 1 that he was unaware of the death of Mr. Jain is unacceptable. Since on 6.5.2003 the power of attorney Page 44 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT dated 28.5.1997 was no longer in effect, the appellant No. 1 could not have signed the sale deed on 6.5.2003 as the power of attorney holder of Mr. Jain. For, obviously on 6.5.2003 he had no such power of attorney on behalf of Mr. Jain.
11. Although the agreement to sell dated 28.5.1997 has been produced by the appellants before the trial Court, but an agreement to sell does not transfer the title of the property to the appellant No.
1. The learned trial court has correctly concluded that on the basis of the agreement to sell, the appellants could have filed a suit for specific performance against the respondents. But they have failed to do so. Therefore, the appellant No. 1 could not have sold the land to the appellant No. 2 claiming himself to be the sole owner of the said land. The trial court has further correctly noticed that according to the sale deed dated 6.5.2003, the appellant No. 1 has sold the land not in his capacity as the owner, but in his capacity as the power of attorney holder for Mr. Jain. Hence, the trial Court has legally and validly passed the impugned judgment."
* Even the Andhra Pradesh High Court in the case of M. John Kotaish v. A. Divakar decided by learned Single Judge on 7.4.1984 in CRP No.773 of 1983 held as under. Relevant paragraph Nos.14 to 22 thereof read as under:
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"14. In the present case one other important principle has to be borne in mind.
15. The principle of S.1 applies only to case where authority is given for the purpose of giving a security or a part of the security and not to cases where the interest of the donee arises afterwards and incidentally. In such cases there is no authority coupled with an interest; but it is an independent authority and an interest subsequently arising (per Venkata Subbarao, J. in Venkanna v.
Atchuuta Ramanna AIR 1938 Mad 542 as decided by the Madras High Court. In that case the sons of Ramaiah (plaintiffs 1 to 5) together with one Brahmaiah executed a document on 21-11- 1916 in favour of the 6th plaintiff who was a stranger to the family. The 6th plaintiff claimed to be an agent of plaintiffs 1 to 5 who were the sons of one Ramaiah. The sons of Ramaiah and Brahmaiah had executed the document on 21-11- 1916. The document provided that the 6th plaintiff could file a suit for himself and conduct it and that the properties recovered, on behalf of the principals above mentioned, should be divided into two equal shares between the agent and the principals. The question arose whether the power given to the agent was an irrevocable power. It was held that the document contemplated the agent incurring costs 'in futuro' for the filing and the conduct of the suit. It was observed that the conditions for execution of an irrevocable power of attorney were satisfied only in cases, where the authority was given for the purpose of being a Page 46 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT security or a part of the security, and not to cases where the interest of the donee arises afterwards and incidentally; in such cases there is no authority coupled with an interest, but an independent authority and an interest subsequently arising. Venkata Subba Rao, J. referred to the case in Smart v. Sanders (1848) 5 CB 895=136 ER 1132 at 1141 where Wilde C.J. observed as follows:
"But we think this doctrine applies only to cases where the authority is given for the purpose of being a security, or, as Lord Kenyon expresses it, as a part of the security, not to cases where the authority is given independently, and the interest of the donee of the authority arises afterwards and incidentally only. As, for instance, in the present case, as disclosed by the 13th plea, the books are assigned to a factor for sale. That confers an implied authority to sell. Afterwards the factor makes advances.
This is not an authority coupled with an interest; but an independent authority, and an interest subsequently arising. The making of such an advance may be a good consideration for an agreement that the authority to sell shall be no longer revocable; but such an effect will not, we think, arise independently of agreement. There is no authority or principle in our law, that we are aware of, Page 47 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT which leads us to think it will."
Similarly in CORPUS JURIS SECUNDUM. Vol. 2 (Agency) it is stated as follows at page 1163:
"The interest to which the agent gets in the estate or property must be simultaneous with the power given him in order to give him a power coupled with an interest and nor this reason an interest in the result of the exercise of the power as distinguished from an interest in the subject matter of the power itself, is insufficient, for if the agent's interest exists only in the proceeds arising from an execution of the power , the power and the interest cannot be simultaneous in point of time since the power, in order to produce the interest, must be exercised, and by its exercise it is extinguished."
(Emphasis mine)
16. Similarly in the American Restatement of Law, on Agency, it is mentioned as follows in Chapter V at para )138 pages 351) as follows:-
"If, however, the power so given is held for the benefit of the principal and the agent is interested in its exercise only because it entitles him to compensation in exercising it, then even though the principal Page 48 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT contracts not to terminate it, and although the agent gives consideration therefor, as by acting or agreeing to act, the power is not a power given as security as the term is herein used. An agent's interest in earning his agreed compensation is an ordinary incident of agency and neither a contract that the principal will not revoke nor a contract that the agent may protect his right to earn commissions, in spite of the revocation, will deprive the principal of control over act to be done by the Agent on his behalf.
On the other hand, if an agent acquires an interest in the subject matter, as where he engages in a joint enterprise in which another supplies the subject matter, a power given him by the other to protect such interest is a power given as security."
17. Thus it will be seen that if the interest created in the agent is in the result or the proceeds arising after the exercise of the power then the agency is revocable and cannot be said to be an irrevocable agency. However, if the interest in the subject matter, say a debt payable to the principal, is assigned to the agent as security simultaneously with the creation of the power and thereafter the agent exercises the power to collect the debt for discharge of an obligation owed by the principal in favour of the agent or owed by the principal in favour of a third party, Page 49 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT then the agency becomes irrevocable.
18. In the present case it will be seen prima facie on a reading of the power of attorney that there was no existing obligation in favour of the plaintiff, such as a debt before the execution of the power of attorney nor was such an obligation created simultaneously with the execution of power of attorney. This is also not a case where the principal has assigned any interest simultaneously with the execution of the power of attorney. But it only created an interest in the resultant product or produce arising out of the exercise of the power. Paragraph 10 of the power of attorney extracted above permits the agent to recover all his dues and remuneration of 5% of the total value of the total properties, developed or otherwise and all the amount lying in various banks are to be fully recovered and duly paid to the attorney.
Thus, the interest created in favour of the agent for payment of either his dues or his remuneration is in the product arising out of the exercise of the power and therefore it is clear prima facie, that Ex.A-1 does not create an irrevocable power of attorney.
19. It is then argued that inasmuch as the document itself mentions that the power created is irrevocable, and also irrevocable for a period of ten years, it is not permissible to treat it as a revocable power.
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20. From the passages quoted above it is clear that if on a construction of the power of attorney and in the light of the facts and circumstances obtaining in the case, the document does not prima facie satisfy the requirements for the creation of a power coupled with interest, then merely because the document itself describes the agency to be an irrevocable one, it does not become an irrevocable agency. The Indian Contract Act also provides that in cases where the period of agency is prescribed and the agency is not, in law irrevocable, then the agent may have a cause of action against the principal for other remedies in case the agency is revoked within the period. But that does not mean that an agency described as being irrevocable is to be treated as an irrevocable if, in law, it does not satisfy the requirements of an irrevocable power of attorney.
21. The learned counsel for the respondent invited my attention to the decision of the Madras High Court in Palani Vannan v.
Krishnaswamy Konar AIR 1946 Mad 9. In that case the primary object of the power of attorney was that the agent is to execute a decree and recover on behalf of the principal the fruits of the decree. It provided that the agent's remuneration was to be one-half of the proceeds. It also contained an indemnity for the out of pocket expenses of the agent to be recovered form out of realisations. The power of attorney was not executed for the purpose of protecting or securing any interest of the agent. The last words of the Page 51 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT power were, I shall not for any reason whatsoever cancel, without your permission, this authority which I have given to you, without paying the amount expended by you and without giving the aforesaid relief for your trouble.
22. It was held by the Division Bench of the Madras High Court that the agency was not one coupled with interest falling under S.202 of the Indian Contract Act. Thus the document in that case was construed as a revocable power of attorney even though it expressly stated that it was irrevocable. Such a construction was put on the document because of the fact that, in law, it only created an interest in the proceeds of the exercise of the power."
26. What is evident from reading the aforesaid decisions is that the power of attorney given by the respondent Nos.6 and 7 as part of the family arrangement could not be enforced for execution of the registered sale deed when in fact the vendor Nos.7 and 10 had died on the date of the execution of the sale deed. In the opinion of this Court therefore provisions of Sec.135(D)(8) of the Gujarat Land Revenue Code squarely came into play.
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27. What the Special Secretary also further observed that on the strength of the order of the Deputy Collector dated 27.5.2017, the respondent Nos.6 and 7 sold the land in question by a registered sale deed to respondent Nos.8 and 9 herein on 24.7.2019. Based on this sale deed, revenue entry 16761 was entered into the revenue records and certified in favour of the respondent Nos.8 and 9. The petitioner has challenged the sale deed executed in favour of respondent Nos.8 and 9 by filing a Special Civil Suit No.212 of 2019. Moreover, he has also approached the Collector by filing Revision Application No.82 of 2019 against the order certifying the entry in favour of the respondent Nos.8 and 9. In other words, not only has he challenged the subsequent revenue entry in favour of respondent Nos.8 and 9 but also a Civil Suit for setting aside the sale deed on the grounds raised in the suit. The civil suit is pending in which there is no stay against the Page 53 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT enforcement of the sale deed and, therefore, even prima facie, the sale deed of the subsequent date is pending adjudication before the Civil Court.
28. What the Special Secretary also affirmed is that from the revenue history of the land in question when the branch of Chhaganji and Mangaji was there, the revenue record showed the name of Mangaji as the owner and Chhaganji as a tenant. Albeit that was a mistake. In the year 1988, it was Punjaji who was shown as the tenant. On 17.2.1988, based on the offers having failed for purchase of land by the tenant than Punjaji and by the owner Chhaganji, on 17.2.1988, the land vested with the State Government free from all encumbrances. A Revenue Record showed entry No.7984 dated 29.2.1988 in favour of the State Government. The documents, the Bana-Chithhi, the power of attorney, the declaration etc. showed in the year 2004 that the petitioner had on his own executed the power of attorney and agreed to Page 54 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT purchase the land from the executors of the power of attorney and the vendors. The power of attorney was notarized on 30.3.2004. the agreement to sell had a specific clause therein which admittedly showed that the land in question was running in the hands of the State Government. The revenue record the land in question was in the name of the state. If that was the condition of which the petitioner was aware that this land was in the hands of the State, it was not open for the petitioner to register an agreement to sell on 20.10.2004 between the parties before the Sub- Registrar knowing fully well that on the date agreement to sell was entered into the revenue record unequivocally showed the name of the State as the owner of the land. If that be so, neither the petitioner nor the vendors had any authority or ownership of the land and, therefore the agreement to sell, the route of the sale deed of 11.5.2017 was non-existent and fraudulent. Therefore, the Special Secretary rightly placed Page 55 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT reliance on the observations of the Supreme Court in Civil Appeal No.1994 of 1971 which observed that when the transferee knew as a fact that the transferor did not possess the title which he represent then he cannot be acted on it by making a transfer. Perusal of the reasoning of the Special Secretary would further indicate that after the proceedings were taken in challenge, the Gujarat Revenue Tribunal passed an order on 10.5.2017 declaring the branches of Somaji and Chhaganji as co-owners as family arrangement. The revenue entry implementing the Gujarat Revenue Tribunal's order namely revenue entry No.15510 was entered into the revenue records on 22.6.2017 and certified on 5.8.2017. On 11.8.2017, the Mamlatdar interpreted the order of the Special Secretary and the name of Punjaji Chhaganji Ratuji, the erstwhile tenant was removed from the tenancy records and entry No.15574 was entered into on 11.8.2017 which was certified on 4.10.2017. From the unfolding Page 56 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT dates, the Special Secretary found that right from the year 1988, the name till the year 2017, the land showed in the revenue records till 4.10.2017 as being under the head of the State Government. It was only in the year 2017 i.e. on 4.10.2017 that the name of Somaji Mangaji was entered into the revenue records. There was no appeal filed against the deletion of the name of Punjaji's branch from the revenue records. In other words, the branch of Somaji became the owners of the land in their individual capacity only in October, 2017, that also after 4.10.2017. It was therefore found that the sale was prima facie contrary to the provisions of the Act and, therefore, the Special Secretary was of the opinion that there was reason to believe that entry No.16213 in favour of the petitioner could not be certified.
29. In a detailed discussion the Special Secretary has point wise found as is reiterated hereinabove as to how the Collector erred in holding in favour of the Page 57 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT petitioner. When revenue entry No.16212 prior to a date while certifying the entry in favour of the petitioner specifically showed that Hiraben Somaji had died on 3.1.2008 and therefore revenue entry 16212 certifying the heirship of respondent Nos.6 and 7 on the basis of the death certificate of Hiraben was entered into, the Collector lost sight of this revenue entry and reversed the order of the Deputy Collector which was in favour of the revision applicants.
30. In the opinion of this Court, the decisions relied upon by Mr.Mehul S. Shah, that in when a registered sale deed is put forth before a revenue entry he has no alternative but to certify such entries is not disputed. But also, it is clear that when the Special Secretary has exercised his jurisdiction keeping the position of law in consonance with the provisions of the Gujarat Land Revenue Code, particularly sec.135(D) thereof, it will be in the fitness of things to refer to Page 58 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT the decision of this Court in the case of Thakor Varvaji Talaji v. Collector & District Magistrate, Mehsana reported in 2013(0) GLHEL-HC 231236. Paragraph 8 of the decision reads as under:
"8. On a plain reading of the above provision, it is apparent that by virtue of the said provision, the Mamlatdar is empowered not to certify a mutation entry if he has reason to believe that such mutation entry violates or contravenes any of the provisions of the Act or any other Act. The mutation entry would violate any provision of law provided the acquisition of right which is sought to be entered vide the said entry is contrary to any provision of law. In other words, if the Mamlatdar finds that there is a breach of any law which would render the transaction itself illegal or unlawful, whereby the mutation entry would violate the provisions of the Code or any other Act, resort can be made to sub-section (8) of section 135D of the Code. But for breach of any other provision of law, which has no direct relation to the validity of the transaction/acquisition of right, the Mamlatdar cannot refuse to certify an entry. In the facts of the present case, the deficiency in payment of stamp duty in respect of the power of attorney would not render either the transaction in question or the mutation entry violative or being in contravention of any of the provisions of the Code or any other Act. Thus, in respect of any ancillary breach, which has no direct bearing to the transaction in question, resort cannot be made to sub-section (8) of section 135D of the Code. In the opinion of this court, such provision would be applicable Page 59 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT where there is a breach of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 or such other Act which would render the transaction itself invalid. However, deficit stamp duty in respect of a power of attorney would not render the transaction invalid. The contention that from the contents of the power of attorney, it appears to be in the nature of a transaction of transfer and the document is required to be registered, flies in the face of the decision of the Supreme Court in the case of Suraj Lamp and Industries Private Limited v. State of Haryana, 1 SCC 656, wherein it has been held that a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of the grantor, which when executed will be binding on the grantor as if done by him. It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring the title to the grantee. Thus, the first ground on which the Mamlatdar has rejected the mutation entry cannot be said to be consistent with the provisions of sub- section (8) of section 135D of the Code and, therefore, cannot be sustained."
31. In view of the aforesaid findings which the Special Secretary has come to the conclusion by which he has refused to certify the entry, the decision of the revenue authorities being the Page 60 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020 C/SCA/10858/2020 CAV JUDGMENT Special Secretary (Appeals) cannot be faulted.
32. Accordingly, the petition deserves to be dismissed and the same is dismissed. The order of the Special Secretary dated 20.8.2020 stands confirmed.
33. Rule is discharged with no order as to costs.
34. The Registry is requested to communicate this order through E-mail and / or Fax.
[ BIREN VAISHNAV, J.] FURTHER ORDER Mr.Mehul Sharad Shah, learned counsel for the petitioner requests the Court that the implementation and operation of the judgment be stayed. Such request is rejected.
[ BIREN VAISHNAV, J.] *** VATSAL Page 61 of 61 Downloaded on : Mon Oct 26 23:09:49 IST 2020