Gujarat High Court
Diwansinh Dursinh Zala vs The State Of Gujarat on 24 September, 2021
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/19830/2015 ORDER DATED: 24/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19830 of 2015
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DIWANSINH DURSINH ZALA
Versus
THE STATE OF GUJARAT & 10 other(s)
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MS JYOTI JANI, AGP for the Respondent(s) No. 1
MR HIMANISH J JAPEE for MR JV JAPEE(358) for the Respondent(s) No.
10.1,10.2,10.3,10.4,10.5,6,7,8,9
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,11,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 24/09/2021
ORAL ORDER
1 Rule. Learned advocate Mr. Himanish Japee and Ms. Jyoti Jani, learned Assistant Government Pleader waives service of notice of Rule on behalf of respective respondents. With the consent of the learned counsel for the parties, this petition was taken up for final hearing.
2 The petitioner has filed this petition under Articles 226 & 227 of the Constitution of India challenging the order dated 18.10.2011 passed by the respondent No.3 - Collector, Page 1 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 Banaskantha at Himmatnagar in R.T.S./Revision/ Case No.38 of 2009 and order dated 11.09.2015 passed by the respondent No.2 - Special Secretary, Revenue Department (Disputes) in Revision Application No.MVV/HAKAP/SABAR/67/ 2011. By way of the impugned orders, the mutation entry No.1137, which was mutated in favour of the petitioner on the basis of a registered sale deed dated 18.02.2008 came to be cancelled and the said order was confirmed by the revisional authority.
Page 2 of 173 Brief facts leading to filing of the present petition are as under.
3.1 The land situated at Village Tajpur, Taluka Talod, District Sabarkantha bearing Block No.293 admeasuring 2-85-12 Hec-Are-Sq.Mtrs was originally belong to Gajaraba Kodarsinh Zala (deceased) and Jagatsinh Kodarsinh Zala. The present petitioner purchased the said land from the aforesaid two persons by way of a registered sale deed dated 18.02.2008. At the time of the Page 2 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 purchase of the said land by the petitioner, as per the revenue record, the names of the aforesaid two persons only were there in the revenue record.
3.2 On the basis of the aforesaid registered sale deed, an entry No.1137 was mutated in the revenue record on 25.02.2008 in favour of the petitioner. The entire land in question was converted into old tenure land by Mamlatdar, Talod, District Sabarkantha vide order dated 20.03.2007 and for that entry No.1039 was also mutated.
3.3 Jagatsinh Kodarsinh Zala challenged the aforesaid entry No.1137 mutated in the revenue record on the basis of the registered sale deed dated 18.02.2008 in favour of the petitioner before the Deputy Collector, Sabarkantha, but the same was rejected by the Deputy Collector, Sabarkantha vide order dated 21.02.2009. 3.4 The aforesaid order dated 21.02.2009 Page 3 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 was challenged by other persons before the Collector, Himmatnagar by filing R.T.S./Revision/Case No.38/2009. In the said proceedings, Jagatsinh Kodarsinh Zala, who was the applicant before the Deputy Collector was joined as respondent. In the said revision application filed under Rule 108(6) of the Land Revenue Rules, entry No.1137 was challenged on the ground that the applicants of the said revision application though were co-owners and having joint possession of the land, without their consent, the land was sold in favour of the petitioner, and therefore, Entry No.1137 was sought to be cancelled. Ultimately, the Collector, Sabarkantha vide order dated 15.10.2011 allowed application preferred by the applicants and quashed the order dated 21.02.2009 passed by the Deputy Collector, Sabarkantha at Himmatnagar and cancelled Entry No.1137 by holding that the private respondents have some share in the property and disputed entry was certified in 29 days.
Page 4 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 3.5 Being aggrieved by the aforesaid order dated 15.10.2011 passed b the Collector, Sabarkantha, present petitioner filed Revision Application No.MVV/HAKAP/SABAR/ 67/2011 before the Special Secretary, Revenue Department (Disputes) the and Special Secretary, Revenue Department (Disputes) passed order dated 30.04.2012 directing the parties to maintain status quo in respect of the revenue records. In the said proceedings it was contended by the petitioner that in respect of the aforesaid sale deed a civil suit was already pending. It was also contended that by way of the registered sale deed only part of the land, as per the share of the sellers in the land of common ownership, was purchased by the petitioner and what was required to be seen by the revenue authorities was whether the revenue entry mutated in favour of the petitioner was mutated by following proper procedure or not and that the revenue authorities could not have gone into the legality and validity of the sale deed. After considering the aforesaid contentions of Page 5 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 the petitioner, ultimately, the Special Secretary, Revenue Department (Disputes) vide order dated 11.09.2015 rejected the revision application preferred by the petitioner and confirmed the order passed by the Collector, Sabarkantha in R.T.S./Revision/Case No.38 of 2009. Hence, the present petition was preferred. 4 Heard Mr. Sharvil Majmudar, learned counsel for the petitioner, learned advocate Mr. Himanish J. Japee for Mr. J.V.Japee, learned counsel for private respondent Nos.6 to 9, 10.1 to 10.5 and Ms. Jyoti Jani, learned Assistant Government Pleader for the State respondents. 5 Mr. Majmudar, learned counsel for the petitioner submitted that it is settled law that once an agricultural land is purchased by way of registered sale deed, the revenue authorities are bound to mutate the revenue entry in revenue records based on such registered sale deed. He further submitted that the revenue authorities cannot question the legality and validity of the Page 6 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 registered sale deed. It was further submitted that whether the sale deed is valid or not, is purely a matter within the purview of civil court and revenue authorities cannot decide the question of right and title of the land. The only thing required to be seen by the revenue authorities was whether the entry which was mutated in favour of the petitioner was on the basis of a registered sale deed or not. Mr. Majmudar further submitted that in view of Section 135C of the Land Revenue Code, 1979, the entry with regard to the registered sale deed is required to be mutated compulsorily. He further submitted that when the civil suit between the petitioner and private respondents was still pending and when the issue was to be adjudicated by the civil court, the revenue authorities ought not have cancelled the entry on the basis of the registered sale deed. Mr. Majmudar further submitted that the revenue authorities have exercised the power which is not vested in them, which amounts to encroaching upon the domain of the civil court.
Page 7 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 5.1 Mr. Majmudar in support of his contentions relied upon the judgment of this Court in the case of Dudhiben Muljibhai Patel & Ors. vs. State of Gujarat reported in 2016(2) GLR 1786 and submitted that when there is a registered sale deed executed in favour a person the revenue authorities are bound by the said sale deed and must mutate the revenue entry on the basis of the aforesaid sale deed unless and until the civil court cancels the same. Reliance has been placed on para 7 of the said judgment and submitted that the question of following procedure under Section 135D of the Bombay Land Revenue Code would not arise when a transaction is by way of registered sale deed and such transaction cannot be disputed by the revenue authorities unless the competent civil court annuls the same. On the strength of the aforesaid contentions, Mr. Majmudar, learned counsel for the petitioner, prayed for quashing and setting aside the impugned orders passed by the revenue authorities by allowing the Page 8 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 petition.
6 Per contra, Mr. Himanish Japee, learned counsel submitted that the land in question is jointly occupied and cultivated by the private respondents. They have constructed a farm house and bore well on the land in question and that the respondents have a share in the land in question. She further submitted that the sale deed in favour of the petitioner was executed by taking undue advantage of the ignorance and illiteracy of the respondent No.11, and therefore, any transaction, which is taken place without obtaining the consent from the persons having share or interest in the said land is nullity and any mutation entry based upon such transaction also would not be sustainable. Mr. Japee further submitted that both the authorities have rightly exercised powers by cancelling the mutation entry No.1137, which was in favour of the petitioner.
7 Ms. Jyoti Jani, learned Assistant Page 9 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 Government Pleader submits that what emerges from the record is that by taking undue advantage, ignorance and illiteracy of respondent No.11, the petitioner succeeded in executing registered sale in his favour, which is an illegal act on the part of the petitioners in respect of the land in question. She further submitted that at no point of time consent of the private respondents, who have share in the land were consulted and their consent was obtained in respect of the sale of the land. Therefore, when the transaction has taken place behind the back of the private respondents, the revenue authorities have rightly cancelled the mutation entry No.1137, which was in favour of the petitioner.
8 Having heard learned counsel for the parties and on perusal of the record of the case, it appears that the petitioner purchased the land in question by way of registered sale deed dated 18.02.2008 and accordingly Entry No.1137 was mutated in favour of the petitioner Page 10 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 in the revenue record on 25.02.2008. It is not in dispute that the petitioner has purchased the land by way of registered sale deed. Law in this regard is settled by now. In case of Nathubhai Meraman Darji vs. Special Secretary (Appeals) reported in 1996(3) GCD 690 the Court in paras 7 and 8 observed as under:
"7. There is another aspect in this case. It is not in dispute that respondent No.5 has filed Civil Suit No.244 of 1990 in the Civil Court at Veraval for challenging the legality of the sale deed executed by his grandfather in favour of the present petitioner. By his order at Annexure-D to this petition, respondent No.2 has clearly indicated that the decision of the Civil Court in the aforesaid suit proceeding will be binding to the parties. In that view of the matter, the interference with that order at Annexure-D to this petition passed by respondent No.2 herein was not called for in view of the ruling of this court in the case of Ratilal Chunilal Solanki v. Shantilal Chunilal Solanki reported in 1996 (2) 37 (2) Gujarat Law Reporter at page
525. Page 11 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022
C/SCA/19830/2015 ORDER DATED: 24/09/2021
8. As pointed out hereinabove, respondent No.3 has set aside the entry at Annexure-A to this petition only on the ground that no notice under Section 135-D of the Downloaded on : Tue Sep 14 23:12:48 IST 2021 Code was served to the deceased before effecting mutation in the revenue record on the basis of the registered sale transaction. In this connection, a reference deserves to be made to Section 135-C of the Code. It has been provided therein that any person acquiring interest inter alia by purchase of land has to report the sale transaction to the Village Accountant obviously for the purpose of effecting the necessary mutation in the revenue records. The Second Proviso thereto has exempted inter alia the purchaser from making such report to the Village Accountant if such transaction is represented by a registered document. It is an admitted position on record that the petitioner purchased the disputed land from the deceased by means of a registered sale deed. He was therefore not required to report that transaction to the Village Accountant. The Village Accountant was required to take note of that transaction on account of its registration according to the Indian Registration Act, 1908. In that case, the question of following the Page 12 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 procedure of Section 135-D of the Code would not arise. When a transaction is represented by a registered document, its suo motu cognizance is required to be taken by the Village Accountant for the purpose of its mutation in the concerned revenue record. If that transaction is disputed, the disputing party will have to approach the competent civil court for annulling or avoiding such transaction as provided in Section 31 of the Specific Relief Act, 1963. It would not be open to him to dispute the validity of the transaction in what is popularly known as the RTS proceedings. I think respondent No.3 was not justified in setting aside the entry at Annexure-A to this petition on the ground that the required notice under Section 135-
D of the Code was not served to the
deceased. I am of the opinion that the
deceased was not required to be served with the notice under the said statutory provision."
8.1 Similarly, another co-ordinate Bench of this Court in Jhaverbhai Savjibhai Patel Thro' POA Holder Ashok J. Patel vs. Kanchanben Nathubhai Patel & Ors. reported in 2005(3) GLH 657 categorically held that an entry must be Page 13 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 made on production of the registered sale deed. 8.2 The aforesaid being the legal position, in the instant case also, the mutation entry No.1137 was mutated on the basis of registered sale deed in favour of the petitioner. Civil dispute is also pending between the petitioner and respondents wherein also nothing is placed on record to indicate that any stay was granted in favour of the respondents or that the civil suit was decided against the petitioner. In absence of any prohibitory order against the petitioner in respect of the registered sale deed on the basis of which the mutation entry was mutated in the revenue record, the revenue authorities were not justified in cancelling the revenue entry No.1137 which was in favour of the petitioner.
8.3 On going through the impugned orders passed by the revenue authorities, it could be seen that in spite of the fact that the petitioner drew the attention of the authorities Page 14 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 that civil suit is pending between the parties, instead of cancelling the entry, which was in favour of the petitioner, the authorities ought to have passed order that the revenue entry would be subject to the final outcome of the pending civil dispute between the parties. However, both the revenue authorities viz. Collector, Sabarkantha and Special Secretary, Revenue Department (Disputes) encroached upon the domain of the civil court and gone into the legality and validity of the sale deed, discussed about the share of respondents, whether notice under Section 135D of the Code was served upon the respondent or not and why the entry was certified within a period of 29 days, etc. 8.4 Once a registered sale deed is executed, revenue entry is required to be mutated on the basis of such sale deed. Other aspects such as whether notice under Section 135D of the Code was served upon the interested parties and whether the entry was mutated Page 15 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 within 29 days would become insignificant in view of the above referred judgments. The only important aspect for mutating the revenue entry would be that if it is on the basis of a registered sale deed, unless the validity of that registered sale deed is determined and the registered sale deed is annulled, the validity of the mutation entry based upon such registered sale deed cannot be cancelled. Accordingly, since both the revenue authorities viz. Collector, Sabarkantha and Special Secretary, Revenue Department (Disputes) have committed error by cancelling the revenue entry No.1137, both the impugned orders are required to be quashed and set aside.
9 In view of the above discussion, this petition is allowed and impugned order dated 18.10.2011 passed by the Collector, Banaskantha at Himmatnagar in R.T.S./Revision/Case No.38 of 2009 and order dated 11.09.2015 passed by the Special Secretary, Revenue Department (Disputes) in Revision Application No.MVV/HAKAP/SABAR/67/ Page 16 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022 C/SCA/19830/2015 ORDER DATED: 24/09/2021 2011 are hereby quashed and set aside. It is made clear that entry No.1137 shall be subject to the outcome of the pending civil suit. Rule is made absolute to the aforesaid extent. However, there shall be no order as to costs.
(NIRZAR S. DESAI,J) P. SUBRAHMANYAM Page 17 of 17 Downloaded on : Sun Jan 16 18:16:21 IST 2022