Gujarat High Court
Legal Heirs Of Deceased Sharadaben ... vs State Of Gujarat on 11 April, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/1124/2018 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1124 of 2018
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LEGAL HEIRS OF DECEASED SHARADABEN AMRUTLAL PATEL Versus STATE OF GUJARAT ========================================================== Appearance:
J K GANDHI(7482) for the PETITIONER(s) No. 1,1.1,1.2,1.3,1.4,2,3,4,5 MR H A SHAH(6071) for the PETITIONER(s) No. 1,1.1,1.2,1.3,1.4,2,3,4,5 MR MANAN MEHTA, AGP (99) for the RESPONDENT(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 11/04/2018 CAV ORDER Heard learned advocate Mr.J.K. Gandhi for the petitioners and learned Assistant Government Pleader Mr.Manan Mehta for the respondent - State and its authorities.
2. This petition is directed against order dated 28th November, 2017 passed by the Secretary, Revenue Department (Appeals), Ahmedabad, whereby Revision Application No.124 of 2014 came to be dismissed, resultantly, order dated 18th March, 2014 of Collector, Ahmedabad, was maintained.
3. The dispute dealt with by the revenue authorities reached upto the revisional proceedings was in respect of Mutation Entry No.3114 which was a boja entry entered on 22nd December, 2004 in respect of land bearing Survey No.129 Paiki admeasuring 17503 sq. mtrs. situated at Hansol, Taluka & City Ahmedabad. After its mutation, objection was raised.
Page 1 of 6C/SCA/1124/2018 CAV ORDER However the City Mamlatdar did not accept the
objection and approved the Entry. Against the said order of the City Mamlatdar, Ahmedabad dated 18th February, 2006, the present petitioner - Shardaben Amrutlal Patel and others preferred appeal which was rejected on 17th May, 2009. Against the said order, revision was filed before the Collector, Ahmedabad, which was also dismissed on 18th March, 2014. Thereafter Revision Application was filed and the impugned order culminated.
3.1 The petitioners are aggrieved in respect of boja entry entered into the revenue records as above. The case put-forth by the petitioners has been that they are the heirs of the original land owner one Motilal Gigibhai and by virtue of legal heirship, they became owners of the land in question. One of the legal heirs Shakiraben Amrutlal died on 30th September, 1970, which left the two heirs viz.Shardaben Amrutlal and Prahladbhai alias Suryaprasad Amrutlal, to succeed the property. It is the case that they have been in possession of the property as legal owners.
3.2 It is further stated that in the year 1993 since the land owners were in need of money, they arranged to raise finance with the help of one Natvarlal Chunilal Prajapati. A power of attorney dated 17th June, 1993 was executed in favour of said Natvarlal Chunilal. On the same date, agreement for sale was executed and possession letter was given. It is the case of the petitioners that they accepted Page 2 of 6 C/SCA/1124/2018 CAV ORDER only Rs.16,000/- against the total price which was fixed to be more than Rs.50.00 lakhs.
3.3 It further appears from the case of the petitioners stated in the petition that said Natvarlal Chunilal raised loan from National Small Industrial Corporation Limited. It appears further that on 15th April, 1999, said Natvarlal - power of attorney of the petitioners addressed a letter to National Small Industries Corporation in which property in question of the petitioners was offered as collateral security. The said letter reads to state that the title deeds of the property bearing Survey No.129 at Hansol in question was given as collateral security against the financial assistance taken from the corporation, further requesting the Corporation to treat the same as security towards the dues. It is the case of the petitioners that the said letter was ought not to have been accepted as collateral security by the Corporation. Civil suits were also filed to recover the amount.
3.4 As stated by the petitioners, the National Small Industries Corporation had preferred Special Civil Application No.9791 of 2011 seeking auction of the property belonging to the petitioners in which this Court directed the Collector to taken necessary steps to ascertain whether recovery certificate could be executed against the property mentioned in the recovery certificate. It is stated further that subsequently distress warrant was also issued but it returned back to the Corporation.
Page 3 of 6C/SCA/1124/2018 CAV ORDER 4. It was the contention on part of the
petitioners on the basis of such events that the Mamlatdar, Ahmedabad, was of the opinion that distress warrant could not be acted upon as the property was doubtful. It was submitted that there is no possibility of recoverability. It was submitted that the recovery certificate was returned by communication dated 05th July, 2014 stating that recovery was not possible from debtor. It was contended that when recovery was not possible, boja Entry could not have been continued. Further submission was made to question the very transaction of power of attorney given by the petitioners to said Natvarlal Chunilal Prajapati. It was submitted that the property was wrongly treated as debted property and was wrongly subjected to encumbrance.
5. The authorities were right in taking view that the submission of the petitioners that power of attorney executed was bogus and on that basis said Natvarlal Chunilal could not have acted to offer the property as collateral security to the Corporation, was an aspect to be decided by the civil court after leading evidence. Loan was taken from the Corporation which was not disputed. Therefore, the authorities did no wrong to refuse to cancel the Entry, further duly observing that the petitioners would be required to seek appropriate relief from the civil court and that unless the civil court passes order absolving the petitioners from their liability, the Mutation Entry could not be annulled.
Page 4 of 6C/SCA/1124/2018 CAV ORDER 5.1 The approach and the reasoning of the
revenue authorities could not be said to be booking any error. The facts showed that the factum of loan was not in dispute. Nor it was in dispute that said Natvarlal Chunilal in capacity of power of attorney holder of the petitioners addressed a letter to National Small Industries Corporation, whereby property bearing land Survey No.129 at Hansol, Ahmedabad, was offered as collateral security against the financial assistance taken from the Corporation.
5.2 The submission of the petitioners could not be accepted that since the recovery certificate was returned by the Mamlatdar, a boja Entry was liable to be scored-off. Recovery or otherwise of the debt is of no relevance. What is relevant is existence of debt. The primary facts were available on record to indicate existence of debt. Absence of recoverability of debt cannot be equated with absence of debt itself, unless the civil court has pronounced on the said aspect. Hence boja Entry was justified. The petitioners have not approached the civil court. If they want the boja Entry to be cancelled, they have to get their rights determine from the civil court in which they can also raise contention about the validity of power of attorney had executed in favour of said Natvarlal.
5.3 As far as the revenue authorities are concerned, they could not be faulted for continuing and maintaining boja Entry on the basis of the facts indicated above when neither the power of attorney Page 5 of 6 C/SCA/1124/2018 CAV ORDER was cancelled by the civil court nor the case of the petitioners that the debt did not exist qua them or that debt did not exist at all was not established. No case is made out for interference in the supervisory jurisdiction under Article 227 of the Constitution.
6. For the aforesaid reasons and orders passed by the revenue authorities as well as the impugned order passed by the revisional authority could be said to be proper and legal. The rights of the petitioners are kept open to approach the civil court to seek appropriate decree/order. The challenge is meritless.
7. This petition is not liable to be entertained and the same stands dismissed.
(N.V.ANJARIA, J) Anup Page 6 of 6