Gujarat High Court
Tulsibhai Bhagwanbhai Patel & vs State Of Gujarat & 2 on 3 July, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/11865/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11865 of 2017
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TULSIBHAI BHAGWANBHAI PATEL & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR DHAVAL M BAROT, ADVOCATE for the Petitioner(s) No. 1 - 2
MS NISHA THAKORE, AGP for the Respondent(s) No. 1
M/S WADIAGHANDY & CO, CAVEATOR for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 03/07/2017
ORAL ORDER
By this application under Article 227 of the Constitution of India, the applicants have prayed for the following reliefs :
"(A) That the Hon'ble Court may be pleased to issue an appropriate writ, order or direction for quashing and setting aside the impugned order dated 10.4.2017 (Ann- A) passed by the respondent no.1 in Revision Application No.150/2016 and the order dated 1.8.2016 passed by the Collector, Valsad in Revision Case No.96/2015, in the interest of justice;
(B) That pending admission, hearing and final disposal of the petition, the Hon'ble Court may be pleased to stay the implementation, operation and execution of the Page 1 of 6 HC-NIC Page 1 of 6 Created On Sun Jul 23 08:37:28 IST 2017 C/SCA/11865/2017 ORDER impugned order dated 10.4.2017 (Ann-A) passed by the respondent no.1 in Revision Application No.150/2016 and the impugned order dated 1.8.2016 passed by the Collector, Valsad in Revision Case No.96/2015, in the interest of justice;
(C) For Costs;
(D) For such other and further reliefs as may be deemed fit and proper."
The dispute pertains to a land bearing Old Survey nos.24/3, 70/1/p and 23/2 situated at Mouje Manekpur, Taluka Umargam, District Valsad. The original owner of these parcels of land was one Shri Hosang Ardesar Karbhari. The original owner entered into a lease agreement of 40 years with the respondent no.3 herein. This transaction led to mutation of entry no.1115 dated 1st June 1990. Later on, the original owners sold the very parcels of land to the applicants herein in the year 2005 by a registered sale-deed and in this regard also an entry came to be mutated in the record of rights. The applicants, being the purchasers of the land in question, disputed the entry no.1115 mutated on 1st June 1990 by filing an appeal before the Deputy Collector, Pardi. The Deputy Collector, Pardi, by his order dated 30th March 2015, allowed the appeal and ordered deletion of the entry as regards the lease-deed mutated in the record of rights. Being dissatisfied, the respondent no.3 herein went before the Collector by filing a revision application no.96 of 2015. The Collector, by his order dated 1st August 2016, allowed the revision application and quashed and set-aside the order passed by the Deputy Page 2 of 6 HC-NIC Page 2 of 6 Created On Sun Jul 23 08:37:28 IST 2017 C/SCA/11865/2017 ORDER Collector. Being dissatisfied, the respondent went before the SSRD. The SSRD rejected the revision application filed by the applicants, thereby affirming the order passed by the Collector. While rejecting the revision application, the SSRD observed as under :
(The free English translation of the same reads thus :) "Upon considering the aforesaid facts and order of the Collector as well as available record, it appears that land bearing Revenue Survey No.24/3, R.S. No.70/1 paiki, R.S. No.23/2 of Mouje : Manekpur, Taluka Umargam, was belonging to Hosang Ardesar and R.S. no. 70/1 paiki land was running in the name of Hosang Ardesar. That out of the aforesaid lands, the owner of land bearing R.S. No.24/3, R.S. No.70/1/paiki, R.S.No.23/2 had entered into registered lease agreement dt. 29.01.1990 in favour of Kum.Gauri Dixit and Nicolas Masid, for growing fruit bearing trees and to collect fruits and for cattle rearing for term period of 40 years on condition of payment of Rs. 3500/- annual rent. That on basis of the same, mutation entry no.1115 , dt. 01.06.1990 was entered in the revenue record. Also the owner of R.S. no. 70/1 paiki namely Shri Godrej Ardesar Karbhari, had also executed one registered lease agreement dt. 11.04.1990 in favour of Smt.Yashodhara Dalmiya, residing at Mumbai along with well, plants, pipeline, bullock cart, engine, electric motor, telephone and other items for period of 30 years on condition of payment of annual rent of Rs. 3500/-. That on basis of same mutation entry no.1125, dt. 24.10.1990 was entered in the Revenue record. That the effect of the lease entries in the 7/12 extract was made in the second round. That opponent no. 1 and 2 had preferred appeal before the Deputy Collector, Pardi wherein as per entry no.1233 dt 01.01.1997 and entry no.1347, dt. 07.12.2001in aforesaid land, name of Shri Rohinton Bahadur Mistry was entered and opponent no. 1 and 2 had purchased by registered sale deed R.S. no.
24/3 ( Area Hec. 0-18-50 sq. mrts, & 0/1 paiki ( Area Hec. 1-63-91 sq. mrts. ) and R.S.No.70/1 paiki (Area Hec 2-00- 32 sq. mrts.) and on basis of which mutation entry no.1490, dt. 13.09.2007, was entered in village form.
Page 3 of 6HC-NIC Page 3 of 6 Created On Sun Jul 23 08:37:28 IST 2017 C/SCA/11865/2017 ORDER That in column of second right in 7/12 extract, name of Kum. Gauri Dixit and Nicolas Masida and Yashodhara Dalmiya were there which were coming in the way of the applicants to avail bank loan, or other sale or transfer and therefore to cancel the order of certifying the said entries in the column of second right, appeal was preferred before the Deputy Collector, Pardi. The Deputy Collector, Pardi noted that the executant of lease agreement has expired. That he is not alive. Six months rent has been paid. Thereafter, evidence to show of rent being paid has not been produced. Applicants has paid consideration and has purchases these lands. The same is evident from the mutation entry no. 1490, dt. 13.09.2009. The same has been certified by the Mamlatdar. That no objection has been raised by the other side against the said entry and therefore the order dt. 30.03.2015 came to be passed cancelling the name of Kum. Gauri Dixit and Nicolas Masida in the column of second right in respect of land bearing R.S. No.70/1/paiki-
2. That in the aforesaid reasons stated, it is mentioned that original executant of lease agreement has expired. But merely on death of executant, the lease agreement does not come to an end nor there is any such condition. But when the names of the applicants are reflected in the column of second right and when the lease is in force, there is no question of raising any dispute. Therefore, the reasons assigned by the Deputy Collector are not legal. Therefore, the impugned order is not maintainable in eye of law. That opponents claims to have purchase land and therefore the order is not maintainable. That opponents claims to have purchase the land and since then they are cultivating the said land. But the entry of lease being entry no.1990 has been entered. That the said entry having entered was never objected by the owner during his life time and thereafter by the holders have also not objected. That when the said land was purchased by the opponents at that time entry about lease agreement was reflected in 7/12 extract inspite of the same till year 2013 no proceedings have been undertaken to cancel the lease deed. That revenue court has no powers to cancel the lease deed. That taking into consideration the said fact, the arguments of opponents cannot be accepted.
That conditions are mentioned in the lease deed and if conditions are not mentioned then the lease is absolute and cannot be cancelled till the expiry of the Page 4 of 6 HC-NIC Page 4 of 6 Created On Sun Jul 23 08:37:28 IST 2017 C/SCA/11865/2017 ORDER term period. And if there is breach of conditions then proceedings as per section 106 and section 111 of the Transfer of Property act has to be done. But by seeking cancellation of entry the lease is not extinguished. That Deputy Collector in his order has not even mentioned about any legal provision for cancelling from the column of second right. That opponents are well aware about the entry of lease in the column of second right. That finding of the Collector to obtain declaration from the competent Civil Court about cancellation of lease deed is proper. Because entry no. 1115/90 is of lease. Thereafter, entry no. 1125 is entered. That lease agreement does not come to an end on death of executant. For cancellation of lease, proceedings under section 106 and 111 of the Transfer of Property act are to be undertaken. That issue is required to be considered. That entry of lease deed has been challenged after long time and even long time after execution of sale deed. Moreover, signature of applicant is there in the lease deed which fact is also required to be consider.
On overall appreciation of the submissions of the parties and order of Collector and considering the record available the submissions of the applicant cannot be accepted. Therefore, following order is passed in the revision application of the applicant."
Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that no error, not to speak of any error of law, could be said to have been committed by the authorities in passing the impugned orders.
Indisputably, the entry no.1115 came to be mutated on 1st June 1990. The document is on record. The said entry also came to be certified. The applicants purchased the land in the year 2005. The lease is in existence as on date.
In view of the above, this application fails and is hereby Page 5 of 6 HC-NIC Page 5 of 6 Created On Sun Jul 23 08:37:28 IST 2017 C/SCA/11865/2017 ORDER rejected.
(J.B.PARDIWALA, J.) MOIN Page 6 of 6 HC-NIC Page 6 of 6 Created On Sun Jul 23 08:37:28 IST 2017