Gujarat High Court
State Of Gujarat vs Chandanben Wd/O Jashvantbhai on 27 September, 2021
Bench: R.M.Chhaya, Biren Vaishnav
C/LPA/607/2021 JUDGMENT DATED: 27/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 607 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 13731 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/LETTERS PATENT APPEAL NO. 607 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
R.M.CHHAYA
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
CHANDANBEN WD/O JASHVANTBHAI
==========================================================
Appearance:
GOVERNMENT PLEADER(1) for the Appellant(s) No. 1,2,3,4,5
MR NV GANDHI(1693) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 27/09/2021
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C/LPA/607/2021 JUDGMENT DATED: 27/09/2021
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the judgment and order dated 29.08.2018 passed by the learned Single Judge in Special Civil Application No.13731 of of 2016, the State Authorities have preferred this appeal under Clause 15 of the letters patent.
2. The following facts in nutshell will be necessary to refer to based upon the record of this appeal. The respondents-original petitioners are owners and occupiers of land bearing survey nos.326 paiki 1 having block no.316, totally admeasuring 34 gunthas, situated at Mouje-Niyol, Taluka:Palsana, District-Surat. It is a matter of record that now the land in question is included in the area of Draft Town Planning Scheme No.54, (Niyol-Sedhav), Surat and as per draft Town Planning Scheme, the respondents-original petitioners have been allotted final plots and some portion of the land in question is forming part of the town planning scheme road as well.
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3. The land in question was originally owned by one Kesarlattadevi widow of Madhusudan Guruvallabhdas and the same was cultivated by one Shri Ratanji Bhavanji as tenant. The record indicates that the tenant had deposited an amount of Rs.72.15 paisa in the name of the land lady and resultantly, the land in question was granted to the tenant Ratanji Bhavanji on new and impartable tenure subject to restrictions under Section 43 of the Tenancy Act. An entry to the said effect being entry no.910 came to be mutated on 20.11.1974 which was duly certified by the competent authority on 10.02.1976. The record further indicates that on death of Ratnaji Bhavanji, name of Ratanben-widow of Ratnaji Bhavanji, came to be mutated in the revenue record as a successor by way of succession being entry no.1202 dated 03.04.1980. The record further shows that by way of a family arrangement, during the lifetime of Ratnaji, name of Ratanben came to be deleted and name of Jashvantbhai Jagubhai who happens to be the nephew of Page 3 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 Ratanben, came to be mutated by entry no.1321 dated 19.01.1982. After following due process of law as provided under Section 135D of the Gujarat Land Revenue Code (hereinafter to be referred to as 'the Code' for the same of brevity), same entry came to be certified on 02.03.1982. The record indicates that the said entry was rechecked by the learned Collector and ultimately certified. Right from 1982 onwards, the name of Jashvantbhai Jagubhai came to be continuously shown as owner of the land in question. His death certificate on record shows that Jashvantbhai Jagubhai expired on 21.11.2003 and hence, names of heirs and legal representatives of Jashvantbhai Jagubhai came to be mutated vide entry no.2726 on 15.12.2003 along with other agricultural lands and the said entry also came to be certified.
4. Meanwhile, the State Government came out with a policy on 09.10.2006 whereby, after use of land for a particular number of years, it can be converted from new tenure land to old tenure land. As record Page 4 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 reveals at this stage, the Deputy Collector, Choryasi, opined that there is some illegality in the mutation about the said partition and more particularly entry no.1321 dated 19.01.1982 and hence, referred the said entry to the District Collector, Surat. The District Collector, Surat, vide show cause notice dated 05.01.2007, exercised his suo-motu powers as provided under Rule 108(6) of Gujarat Land Revenue rules, 1962, and took the entry no.1321 dated 19.01.1982 in suo-motu revision on alleged breach of provisions of the Tenancy Act, Hindu Succession Act, Registration Act, and Transfer of Property Act, and registered a case against the respondents-original petitioners being RTS/Suo-Motu/Rev. Case No.1/07. The respondents-original petitioners filed a detailed reply opposing the said show cause notice and thereafter the District Collector, Surat, vide order dated 03.11.2007, referred and transferred the proceedings to Mamlatdar and ALT, Choryasi, for breach of the provisions of the Tenancy Act. On receipt of the same, after a period of about 5 years Page 5 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 i.e. on 11.06.2012, the Mamlatdar and ALT issued notice show cause notice in Ganot Case No.84-C/7/2012, wherein, reference was made to alleged breach of Section 2(6) and 63 of the Tenancy Act. The order was challenged before the Revenue Secretary (Appeals) being Revision No.MVV/HKP/ST No.110 of 2012. Meanwhile, the Mamlatdar and ALT, Choryasi, was pleased to hold that on account of mutation entry no.1321 dated 19.01.1982, there is a breach of Section 43 of the Tenancy Act and directed the parties to restore the possession of the subject land within three months from the date of the order. Being aggrieved by the said order, the respondents-original petitioners filed an appeal before the Deputy Collector under Section 74 of the Tenancy Act. The said appeal was allowed by Deputy Collector, Kamrej, District:Surat, vide order dated 16.10.2014.
5. Thereafter, the learned Secretary vide impugned order dated 15.03.2016, rejected the revision filed by the respondents-original petitioners and directed Page 6 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 the Tenancy Authority to expedite the proceedings preferably within three months. Being aggrieved by that, the petitioner preferred the writ petition being Special Civil Application No.13731 of 2016 which was allowed by the learned Single Judge vide order dated 29.08.2018.
6. It deserves to be noted that pursuant to the earlier orders, Mamlatdar and ALT had issued a notice being proceedings under Section 84C of the Tenancy Act on 04.06.2016 and ultimately, vide order dated 24.09.2018 passed by Mamlatdar and ALT, after the impugned order was passed by the learned Single Judge, suspended the said proceedings under Section 84C of the Tenancy Act. Being aggrieved by the order passed by the learned Single Judge, the State and its authority have preferred this appeal.
7. Heard Mr.Tirthraj Pandya learned AGP for the appellants and Mr.N.V.Gandhi learned advocate for the respondent-original petitioners. Page 7 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021
8. Mr.Tirthraj Pandya learned AGP has taken this Court through the factual matrix arising out of this appeal and contended that the learned Single Judge has failed to appreciate the fact that the act of transfer by family arrangement itself was not in accordance with the provisions of Sections 43 and 63 of the Tenancy Act and as it was void, limitation would not apply.
9. Mr.Pandya learned AGP further submitted that there was no blood relation between Ratanben and Jashvantbhai Jagubhai, the nephew and therefore, indirectly, the land being transferred without there being any valid mode of transfer of the same is voidable. According to Mr.Pandya learned AGP, the said salient fact has been totally ignored by the learned Single Judge. Mr.Pandya learned AGP contended that the learned Single Judge ought to have considered the merits of the matter but as such only on the ground of delay, the petition is allowed.
10. It was further contended that as such the land has Page 8 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 been illegally and invalidly transferred in the name of third party by the tenant, knowing fully well that it was a new tenure land. Mr.Pandya also contended that the learned Single Judge has also not examined the fact whether said Jashvantbhai Jagubhai was an agriculturist or not. It was further contended that even though specific reasons were stated in the show cause notice itself, the same has been completely ignored by the learned Single Judge. On the aforesaid grounds, it was further contended by Mr.Pandya learned AGP that the appeal requires consideration and on merits it was submitted that the impugned order passed by the learned Single Judge deserves to be quashed and set aside confirming the order in original passed by the Collector as well as the order in revision passed by the learned Secretary, Revenue (Appeals).
11. Per-contra, Mr.N.V.Gandhi has opposed this appeal. Mr.Gandhi contended that the learned Single Judge has rightly allowed the writ petition. Mr.Gandhi contended that the suo-motu action has been Page 9 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 resorted to by the District Collector after a lapse of 25 years. Mr.Gandhi further contended that as such when entry nos.1321 was mutated on 19.01.1982, the same were again examined by the District Collector and thereafter the same came to be certified. According to Mr.Gandhi, the very action on the part of the District Collector to issue show cause notice after a lapse of 25 years in the year 2007, amounts to exercising revisional powers for the second time which is not permissible under the law. Relying upon the ratio laid down by this Court in case of Evergreen Apartment Co-operative Housing Society Limited v. Special Secretary (Appeals), Revenue Department, reported in 1991 (1) GLH 155, it was contended by Mr.Gandhi learned counsel appearing for the respondent that while exercising jurisdiction and power under Rule 108(6) of the Gujarat Land Revenue Rules, 1972, the Collector had no authority under the law to refer it to other authorities. Mr.Gandhi further contended that there is no allegation of fraud and the learned Page 10 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 Single Judge having examined the record of the case has rightly come to the conclusion that after a delay of about 25 years, such revisional powers cannot be exercised. Mr.Gandhi contended that the land came to be mutated in the name of Jagabhai as heir apparent of Ratnaji Bhavanji. Mr.Gandhi contended that it is not correct that there was no relationship between both the parties. Mr.Gandhi claimed that the predecessor of the present respondent Jagabhai happened to be nephew of Ratanben. Mr.Gandhi further submitted that Ratanben had no direct heir and therefore she thought it fit to deown the land in question in favour of Jagabhai as heir of the appellant as per the family arrangement. Mr.Gandhi contended that as such it is not transferred at all but has come to the share of Jagabhai under the heir- ship as per the wish of Ratanben. Mr.Gandhi submitted that all entries have remained for a period of 25 years and the authorities had full knowledge about the same and the appellants authorities cannot be permitted to say that they had no Page 11 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 knowledge about the same.
12. Mr.Gandhi learned advocate further submitted that the learned Single Judge has rightly come to the conclusion that revisional powers have been exercised after an unreasonable period of 25 years and has rightly relied upon the binding precedents of this Court as well as Hon'ble Apex Court and the learned Single Judge has correctly not entertained the writ petition filed by the appellants herein.
13. On the aforesaid grounds, Mr.Gandhi submitted that the appeal is misconceived and the same deserves to be dismissed. No other or further submissions have been made.
14. Before reverting to the submissions made by both the sides, at the outset, it deserves to be noted that it is not in dispute that entry no.1321 came to be mutated on 19.01.1982 and after re-verification of the same by the District Collector, it came to be certified on 02.03.1982. As the factual matrix is already discussed herein above, it would be Page 12 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 appropriate to refer to the show cause notice issued by the District Collector in exercise of powers under Rule 108(6) of the Gujarat Land Revenue Rules, 1972. The said notice recites that it is issued under Rule 108(6) of the Gujarat Land Revenue Rules for suo-motu revision. It refers to the entry No.1321 dated 19.01.1982 and the reasons also are mentioned in the said notice being (i) breach of the provisions of Hindu Succession Act 1956, (ii) breach of Section 54 of the Transfer of Properties Act, (iii) breach of Section 17 of the Registration Act and breach of record of rights.
15. Apart from the fact that the said notice was replied, the respondents-original petitioner brought to the notice of the Collector that the entry of question was rechecked by the Collector, Surat and an endorsement has been made by the Collector himself. If the original entry is looked at, it is crystal clear that the entry came to be mutated after the procedure as prescribed under Section 135D of the Code was undertaken by the authorities then. Even Page 13 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 the subsequent entries by way of succession on demise of the respective owners also has been mutated after duly following procedure under Section 135D of the Gujarat Land Revenue Rules. In the show cause notice in question dated 05.01.2007, it is not the case of the District Collector, Surat, that the respondents-original petitioners have played any fraud and no such reason is found even in the orders impugned in the writ petition before the learned Single Judge. It is thus an admitted position that by notice dated 05.01.2007, what is sought to be taken in suo-motu revision is an entry dated 19.01.1982 i.e. after a period of 25 years.
16. The learned Single Judge after considering the factual background has come to the conclusion that the exercise of revisional powers that too suo-motu by the District Collector, after 25 years is beyond the reasonable period. We are conscious about the fact that what is reasonable period is not provided under Rule 108(6) but however, even on facts of this case, exercise of such powers after a period of 25 Page 14 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 years by no stretch of imagination can be termed and considered as a reasonable period. The learned Single Judge has observed thus;
"6. In view of the rival submissions and having regard to the background of the facts as recorded hereinabove, it is not in dispute that there is exercise of power after 25 years. As it is evident from the notice dated 05.01.2007 issued by the Collector, Surat, that such notice was issued in exercise of power under Section 108(6) of the Gujarat Land Revenue Rules, 1972, for examining the entry made on 19.01.1982, on the ground that it was illegal or irregular. Thus, the entry no.1312 made in the year 1982 is sought to be scrutinized by such notice, which was issued on 05.01.2007. Not only that the Collector while passing the order dated 03.11.2007 has recorded the fact that Ratanaben by executing a document has mutated the name of nephew by family arrangement. Therefore, the moot question is whether it would attract the so called breach of the Tenancy Act. Moreover, the exercise of powers are made under the Land Revenue Code and the matter is referred to Mamlatdar under the Tenancy Act. Therefore, the Collector has only referred the matter and not exercised the power, but he has referred the matter to the Mamlatdar & ALT for verification at belated stage.
7. It is in these circumstances, the moot question is whether the exercise of suo- motu powers could be justified after lapse of 25 years even if the transaction is said to be void or if there are some breach of the Page 15 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 conditions of the Tenancy Act. The Hon'ble Division Bench of this Court (Coram:
Hon'ble Mr. Bhaskar Bhaskar
Bhattacharya, Chief Justice &
J.B.Pardiwala,J.) in a judgment in case of Chandulal Gordhandas Ranodriya & Ors. V/ s. State of Gujarat & Ors., reported in 2013 (2) GLR 1788 has referred to this aspect and has clearly observed as follows:
"...even if transaction is void if it is allowed to remain effective for considerable long period authority will be precluded from initiating proceedings to annual."
While examining this aspect, the Hon'ble Division Bench has considered the broad guidelines and the earlier judgment of the Hon'ble Apex Court in case of State of Gujarat V/s. Patil Raghav Natha, reported in 1969 (2) SCC 187. Further, what could be said to be a reasonable time has also been considered and referring to the earlier judgments including the observations made in the judgment in case of Joseph Severance V/s. Benny Mathew, reported in 2005 (7) SCC 667 that:
"The expression "reasonable time"
means so much time as is necessary under the circumstances to do conveniently what the contract or duty requires should be done in a particular case"
Again, this Court in a judgment reported in case of Bharatkumar C. Jinwala V/s. State of Gujarat, reported in 2015 (1) GLR 576 dealing with the same issue and exercise suo-motu powers under Section 211 relying upon the aforesaid judgment of the Hon'ble Division Bench in case of Chandulal Gordhandas Ranodriya & Ors. (supra) has Page 16 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 made the observations that:
"Considering the propriety and equity and also the interest of justice such exercise of power,such exercise of power beyond reasonable period cannot be permitted"
Further, in the judgment of this Court in case of Bharatkumar C. Jinwala (supra) has made following observation:
"19.It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. It is clear from various judgments of the Supreme Court that where a statutory provisions for exercise of any suo motu powers of revision does not prescribe any limitation, the powers must be exercised within a reasonable period of time even in the case of transaction which would be termed as void transaction"
8. Therefore, having regard to the background of the facts, the impugned order cannot be sustained and deserves to be quashed and set aside. Even if learned advocate AGP has submitted that the Collector, Surat, exercising suo-motu powers under the Land Revenue Code has referred it to the competent authority under the Tenancy Act and it could be examined by the competent authority, is also misconceived. In the facts of the case, assuming that it has been referred to the competent authority and it is allowed to proceed further, it cannot be permitted to scrutinize at such belated stage after 25 years. Therefore, it would be unfair exercise of power generating further litigation and also prejudice to the petitioner."
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17. At this stage, it would also be appropriate to refer to the later judgment of the Apex Court in the case of Telangana Housing Board v. Azamunnisa Begam (DIED) through legal representatives and others reported in (2018) 7 SCC 346, wherein, while considering the claim filed by the respondent under the provisions of Section 87 of Andhrapradesh Telangana Land Revenue 1370, the Hon'ble Apex Court has observed thus;
"58. We are also not satisfied with the delay by the respondents in making a claim under Section 87 of the Act. The contention of the respondents is that since there is no time limit specified for filing a claim petition, they could have made a claim at any point of time, particularly for correcting a clerical error.
59. It is now well settled that where no time- limit is specified, whatever is required to be done should be within a reasonable period. In Collector v. P. Mangamma7it was held in paragraphs 5 and 6 as follows:
"5. A reasonable period would depend upon the factual circumstances of the case concerned. There cannot be any empirical formula to determine that question. The court/authority considering the question whether the period is reasonable or not has to take into account the surrounding circumstances and relevant factors to decide that question.Page 18 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022
C/LPA/607/2021 JUDGMENT DATED: 27/09/2021
6. In State of Gujarat v. Patel Raghav Natha8 it was observed that when even no period of limitation was prescribed, the power is to be exercised within a reasonable time and the limit of the reasonable time must be determined by the facts of the case and the nature of the order which was sought to be varied.........". Reasonable, being a relative term is essentially what is rational according to the dictates of reason and not excessive or immoderate on the facts and circumstances of the particular case."
60. Similarly, in Joint Collector Ranga Reddy District v. D. Narsing Rao 9 the exercise of revisional jurisdiction where no time-limit is specified was considered and it was held in paragraph 31 of the Report as follows:
"31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third-party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that Page 19 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 vests such power in an authority."
61. Finally in Basanti Prasad v. Chairman, Bihar School Examination Board 10 it was pointed out where third party rights are likely to be affected, the courts decline to interfere but if there is a necessity to interfere then the aggrieved person should be heard on merits.
62. Insofar as the facts of the present case are concerned, the claim made under Section 87 of the Act was after a period of at least 25 years. This can hardly be described as a reasonable period. There is no explanation for the inordinate delay and to make matters worse, third party interests have been created through a Housing Scheme developed on the land in dispute or in any event on the surrounding land. After a further lapse of 25 years it is not possible to put the clock back, even if there is any reason to do so, which reason we cannot even visualise in this case."
18. We are in total agreement with the observations and the view expressed by the learned Single judge that the exercise of suo-motu powers by the Collector after a period of 25 years is beyond reasonable period and cannot be sustained in the eye of law. We are in total agreement with the view expressed by the learned Single Judge and such exercise of revisional powers after a period of 25 years would amount to unfair exercise of powers generating Page 20 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 further litigation. Though the revenue entries are fiscal in nature, the same are based on some documents and on an order of competent Courts. In the case of entry No.1321 dated 19.01.1982 came to be mutated and certified later on 02.03.1982, it after following due process of law as provided under Section 135D of the Gujarat Land Revenue Code. The appellant authorities were well aware about the entry made in the year 1982 as the same was certified by the District Collector himself.
19. Even the second limb of argument is examined, Rule 108(6) of the Gujarat Land Revenue Rules provides thus;
108 (6) The [Collector] may call for and examine the record of any enquiry or the proceedings of any subordinate revenue officer held under rules 106, 107 and sub-rules (1) to (5) of this rule for the purpose of satisfying himself as to the regularity of such proceedings and as to the legality or propriety of any decision or order passed in such proceedings. If, in any case, it shall appear to the [Collector] that any proceedings so called for or any decision or order made in such proceedings should be modified, annulled or reversed, he may pass such order thereon as he deems fit. Page 21 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 [(6A)The State Government may call for and examine the record of proceedings in respect of any order passed by the Collector under sub- rule (5) or sub-rule (6) for the purpose of satisfying itself as to the regularity and or such proceedings as to the legality or proprietary of any decision or order passed in such proceedings. If, in any case, it appears to the State Government that any proceedings so called for or any decision or order made in such proceedings should be modified, annulled or reversed, it may pass, such order thereon as it deems fit.]
20. The bare reading of the said sub-rule (6) provides that the Collector while exercising powers under Rule 108(6) exercises powers as a revenue officer and therefore, to pass an order only under the jurisdiction which is otherwise vested in him under the said rule. We also found that while passing the impugned orders, the learned District Collector as well as learned Secretary, Revenue (Appeals), have acted beyond their jurisdiction.
21. We are fortified in our opinion by the judgment of this Court in the case of Evergreen Apartment Co- operative Housing Society Limited (supra), wherein, the learned Single Judge of this Court Page 22 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 while examining the jurisdiction and scope and ambit of inquiry under Rule 108(6) of the very rules, has observed thus;
"(12.) There is much substance in the second submission of Mr. Hawa also. Ordinarily when a transfer of property takes place by a registered document, an entry is effected in the revenue record and it is certified by the Mamlatdar after making necessary inquiries. If there is any dispute regarding mutation, the dispute has to be entered in the register of the disputed cases and then such disputes are to be disposed of by the Mamlatdar. Under sub-rule (5) of Rule 108 of the Rules, the aggrieved party can prefer an appeal within 60 days from the date of the service of the order. The State Government has power to call for and examine the record of any enquiry of the proceedings of any subordinate Revenue Officer and to review the same under sub-rule (6) of the Rules. It is to be noted in the present case that no appeal had been presented within 60 days from the date of Mamlatdars order certifying the initial entry. The Assistant Collector, Surat took the said entry in suo motu revision, even though he had no such power under the provisions of Rule
108. It, therefore, appears that the Additional Chief Secretary, Revenue Department remanded the proceeding to the Collector for treating the same as an appeal. This was done after a period of 4 years after the certification of the entry. It was only the State Government which had the power to call for a record of inquiry or proceeding under sub-rule (6) of Rule 108. Even the State Government was empowered to satisfy "as to the regularity of such proceedings and as to the legality or property of any decision or order passed in such proceedings". So the entire inquiry and Page 23 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 revisional power has to proceed under the Bombay Land Revenue Rules and not under any enactments like the Bombay Tenancy and Agricultural Lands Act, Urban Land (Ceiling and Regulation) Act or Bombay Prevention of Fragmentation and Consolidation of Holdings 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 powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known 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. 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 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transaction recorded in the entry are 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. Thus on this second ground also the orders of the Collector and the Additional Chief Secretary appear to be beyond their jurisdiction. The Additional Chief Secretary has held that the sale by auction was not consistent with the provisions of Sec. 27 of the Urban Land (Ceiling Land Regulation) Act. Section 27 relates to prohibition of transfer of any Urban land with a building thereon. Apart from legal position that Sec. 27 has been struck down as Page 24 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022 C/LPA/607/2021 JUDGMENT DATED: 27/09/2021 ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in the present case. Thus, the order of the revisional authority has proceeded on a misconception of relevant legal provisions also."
22. On that ground also, the orders impugned in the writ petition are beyond jurisdiction. In totality of facts, therefore, none of the grounds as raised by the appellants deserves consideration.
23. Resultantly, the appeal deserves to be dismissed and the same is hereby dismissed. However, there shall be no order as to costs.
24. As the appeal is dismissed, the connected Civil Application, if any, also stands dismissed.
(THE ACTING CHIEF JUSTICE R.M.CHHAYA, J) (BIREN VAISHNAV, J) ANKIT SHAH Page 25 of 25 Downloaded on : Sun Jan 16 18:45:12 IST 2022