Gujarat High Court
Harilal Valji Changa vs Special Secretary Revenue Department ... on 9 June, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/15928/2019 ORDER DATED: 09/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15928 of 2019
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HARILAL VALJI CHANGA
Versus
SPECIAL SECRETARY REVENUE DEPARTMENT (APPEAL)
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Appearance:
MR. JAIMIN R DAVE(7022) for the Petitioner(s) No. 1
MS HIRVA R DAVE(10742) for the Petitioner(s) No. 1
SHIVAM D PARIKH(9477) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 09/06/2022
ORAL ORDER
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged order dated 19.7.2018 passed in Revision Application No.MVV/HKP/ Kachchh/58/2018 whereby revision application filed by the petitioner came to be rejected and order of learned Collector, Kachchh, dated 12.1.2018 is confirmed.
2. Short facts giving rise to the present petition are as under:-
2.1 Present dispute pertains to land bearing Survey No.660 and 662 of mouje-Dagala, Taluka-Bhuj, District-Bhuj-Kachchh.
The land in question belong to one "Anusuchit Jaati Samudayik Kheti Sahkari Mandali Limited", a cooperative society. Vide application dated 28.7.2005, through its Chairman, said Cooperative Society sought permission of learned Collector, Bhuj-Kachchh for conversion of land to Old Tenure from New Page 1 of 13 Downloaded on : Fri Jun 10 21:02:34 IST 2022 C/SCA/15928/2019 ORDER DATED: 09/06/2022 Tenure, in view of prevailing circulars and notifications. Thereafter, vide his order dated 24.3.2005, learned Collector granted permission subject to payment of premium in accordance with existing Government Circulars and Notifications. Pursuant to order dated 24.3.2006, Cooperative Society passed a resolution dated 25.6.2006 to sell the land in question for the purpose of raising funds and development of other lands. Thereafter, the society obtained permission from Registrar, Cooperative Society for sale of land in question.
2.2 The petitioner herein purchased the land in question from cooperative society for a consideration through registered Sale Deed No.6312 dated 22.6.2006. He applied for mutation of his name in the revenue records. Initially pencil entry no.3119 was made in the revenue record. However, it came to be rejected vide order dated 31.8.2009 passed by respondent no.4 on the ground that cooperative society has not obtained permission of Collector for conversion of land into old tenure land. 2.3 Against said decision, petitioner preferred an appeal before respondent no.3, who rejected the same vide order dated 25.8.2015, on the ground that according to Government Resolution dated 4.9.2008, cooperative society was not entitled to get the permission for conversion of land into Old Tenure Land. Against that order, the petitioner preferred revision application before respondent no.2, which also came to be rejected vide order dated 12.1.2018. This order of respondent no.2-Collector came to be challenged by petitioner by filing revision before learned SSRD. Learned SSRD has also confirmed the order of subordinate revenue authorities and rejected the revision. Against this rejection order, the petitioner has filed present petition.
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3. Heard learned advocate Mr.Dave for the petitioner and learned AGP Mr.Nikunj Kanara for the respondent-State at length. Perused the material placed on record.
4. Learned advocate Mr.Jaimin Dave for the petitioner has vehemently submitted the same facts, which are narrated in the memo of petition and has submitted that, as per the application of cooperative society, land was converted into Old Tenure land and that order has not been challenged by the authority till today. He has submitted that once the order of conversion has been passed by competent authority, other revenue authority acting under RTS proceedings has no right or authority to deny the mutation of entry on the basis of Sale Deed. He has also submitted that the authorities are relying upon Government Circular of 2008, which is not applicable in the facts of present case, as the conversion order in this case was passed way back in 2006. He has also submitted that the petitioner has purchased the land in question by registered Sale Deed. He has submitted that even the cooperative society has obtained necessary permission from Registrar, Cooperative Societies and, therefore, it was incumbent on the part of the revenue authority to make necessary entry in revenue record on the basis of registered Sale Deed and to certify it. He has submitted that entire exercise undertaken by the revenue authority in not certifying the Kachcha entry of registered Sale Deed is bad in law. He has submitted to allow present petition. He has relied upon following decisions in support of his submissions.
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(i) In the case of Bhagwanjibhai Bhagabhai Devrajbhai and Others v. Special Secretary and Others reported in 2019 SCC Online Gujarat 4928, it was observed as under:-
"10. In the facts of the present case, as stated above, the dispute is with regard to the mutation of entry, which the respondent authorities are under an obligation to mutate based on registered documents. Therefore at this stage, Section 135C of the Gujarat Land Revenue Code is required to be referred to, which reads as under:-
"135C. Any person acquiring the right on any land by succession, survivorship, inheritance, partition, purchase, mortagage, gift, 8 [lease or Certificate of No Dues made under subsection (2) and (3) of section 125L and section 133(2), or otherwise] any right as holder, occupant,owner, mortagagee, assignee of the rent thereof, shall make a report of such acquisition of such right, either manually or electronically, to the designated officer within the period of three months from the date of such acquisition, and the said designated officer shall at once, give a written acknowledgment of the receipt of such report to the person making it:
Provided that where the person acquiring the right is a minor, or otherwise disqualified, his guardian or other person, having charge of his property, shall make the report to the designated officer :
Provided further that any person acquiring a right by virtue of a registered document shall be exempted from the obligation to report to the designated officer :Page 4 of 13 Downloaded on : Fri Jun 10 21:02:34 IST 2022
C/SCA/15928/2019 ORDER DATED: 09/06/2022 Explanation-I.--The rights mentioned above include a mortgage without possession, but do not include an easement or a charge not amounting to a mortagage of the kind specified in section 100 of the Transfer of Property Act, 1882.
Explanation II-A person in whose favour a mortgage is discharged or extinguished, or lease determines, acquires a right within the meaning of this section.]"
11. From the aforesaid provision, it is clear that if a person is acquiring the right on any land by succession, survivorship, purchase etc. any acquisition of right as holder, occupant, owner etc. thereof shall be reported to the Designated Officer within a period of three months from the date of such acquisition. However if a person acquires right by virtue of the registered document, he is exempted from making an application to report to the Designated Officer. Here in the present case, the original land owner sold the land in question to the father of the petitioners in the year 1965 by registered sale deed, however, it was not necessary for the father of the petitioners to inform to the revenue authority within stipulated period about his acquisition of such right in the land in question. After the death of the father of the petitioners, the petitioners thought it fit to inform to the revenue authority for mutation of the entry on the basis of said registered sale deed and, therefore, he requested the revenue authority in the year 2015 for mutation of the entry on the basis of the registered sale deed, therefore, entry no.3814 came to be mutated on 17.03.2015.
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12. This Court has considered similar issue in a judgment in case of Gandabhai Dalpatbhai Patel Vs. State of Gujarat, reported in 2005 (2) GLR 1370, wherein it has been observed in Para Nos.9 and 10 as under:
"9. It is the consistent view taken by this Court in catena of judgments that the revenue authorities while dealing with RTS proceedings had no jurisdiction and/or authority to decide the question of title and if there is any dispute with regard to title the parties are to be relegated to the Civil Court. As held by the Hon'ble Supreme Court in the case of State of Gujarat VS. Patel Raghav Natha - AIR 1969 SC Page 1297 and judgment of this Court in the case of Ratilal Chunilal Solanki & Ors. Vs. Shantilal Chunilal Solanki - 1996(2) GLR 525 and Siddharth B. Shah vs. State of Gujarat, reported in 1999 (3) GLR Page 2527, the revenue authorities cannot decide the disputed question of title to the property and they have to merely go by the documents produced before them. Even this Court has held in the case of Nathabhai Meraman Darji (Supra) that when a document of registered sale deed is produced before the authority, the revenue authorities are bound to give effect to the same and are not required to decide the question of title.
10. Even this Court in a recent judgment in the case of L.R.s of Popat Khima Ramani and Ors. vs. Collector, Rajkot and Ors., reported in 2003(1) GLH 30, has considered the scope of revenue authorities while deciding the question with regard to mutation entry and the powers under Section 135 and Page 6 of 13 Downloaded on : Fri Jun 10 21:02:34 IST 2022 C/SCA/15928/2019 ORDER DATED: 09/06/2022 Rule 108, has held that revenue authorities are not to decide the question about title and the revenue authorities are to make necessary entries on the basis of decision of Civil Court. It is further held in the said judgment that the revenue authorities are invested with limited powers under Section 135 and they cannot assume to themselves certain powers conferred on them by law and they cannot assume jurisdiction of Civil Court. The revenue authorities cannot decide validity of transaction on touchstone of statutory provision occurring in some enactment and that they cannot decide disputed question of title. In fact, this Court has gone to the extent that when a dispute as to the title arises the parties have to go to the competent Civil Court. In the present case, in fact the Civil Suit is pending between the parties and the Civil Court is to decide all these questions which are raised by the petitioner in the present Special Civil Application with regard to validity of the power of attorney, the genuineness of sale deed, and the authority of power of attorney holder on the basis of the power of attorney. Considering the fact that the suit is pending between the parties and that the petitioner has challenged the legality and validity of the sale deed before the Civil Court and that there is an injunction in the said Suit, in fact the Secretary (Appeals) has tried to strike the balance and has tried to protect the interests of all the parties by directing that the factum of injunction granted by the Civil Court should also be noted in the entry and that the entry in favour of respondent No.5 would be subject to the ultimate outcome of the suit pending between the parties in Page 7 of 13 Downloaded on : Fri Jun 10 21:02:34 IST 2022 C/SCA/15928/2019 ORDER DATED: 09/06/2022 which the legality and validity of the sale deed is challenged. It cannot be said that there is any illegality committed by the Secretary (Appeals). On the contrary, the judgment and order passed by the revisional authority, i.e. Secretary (Appeals) is in consonance with the provisions of Section 135 of the Bombay Land Revenue Code and 108 of the Bombay Land Revenue Rules and the view taken by the Hon'ble Supreme Court as well as this Court with regard to the powers of revenue authorities while dealing with the question of mutation entries. The revenue authorities are not required to consider with regard to the genuineness of the sale deed, the powers and authority of the power of attorney holder under the power of attorney and the question with regard to the title. What is required to be done by the SubRegistrar at the time when the sale deed was executed cannot be permitted to be done by the Mamlatdar and/or revenue authorities while deciding the question with regard to mutation entry, more particularly the entry in the record of rights is only having a presumptive value and only for a fiscal purpose of recovering and payment of revenue and it does not confer any right, title or interest in favour of any party in the property."
(ii) Order of coordinate Bench dated 9.10.2017 passed in Special Civil Application No.18538 of 2017 with Special Civil Application No.18527 of 2017 in the case of Viramgam Taluka Anusubhit Jati and Another v. State of Gujarat and Others.
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5. Per contra, learned AGP, Mr.Kanara has submitted that the applicant has applied for mutation of his name in the year 2009 and, therefore, Government Resolution of the year 2008 would be applicable. He has submitted that the authority has rightly placed reliance on aforesaid resolution and passed an appropriate order. He has submitted that the impugned order does not require any interference and present petition may be dismissed. He has relied upon the decision in the case of Thakore Varvaji Talaji Versus Collector And District Magistrate, Mehsana reported in 2014 (2) GLR 1122, wherein it is observed 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-sec. (8) of Sec. 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 Page 9 of 13 Downloaded on : Fri Jun 10 21:02:34 IST 2022 C/SCA/15928/2019 ORDER DATED: 09/06/2022 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-sec. (8) of Sec. 135D of the Code. In the opinion of this Court, such provision would be applicable 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 Pvt. Ltd. v. State of Haryana, 2012 (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-sec. (8) of Sec. 135D of the Code, and therefore, cannot be sustained."
6. In rejoinder, learned advocate Mr.Dave for the petitioner submitted that the order of conversion of land from New Page 10 of 13 Downloaded on : Fri Jun 10 21:02:34 IST 2022 C/SCA/15928/2019 ORDER DATED: 09/06/2022 Tenure to Old Tenure is still in existence and it has not been taken into revision by any Government authority and entire transaction is of 2006 and, therefore, rules prevalent in the year 2006 would be applicable in this case and not the Circular/Resolution of 2008 or 2009.
7. Having considered the submissions made on behalf of both the sides coupled with the material placed on record and the decisions cited at bar, it appears that there is no dispute that the land was originally belonging to cooperative society and the cooperative society has applied for conversion of the land from New Tenure to Old Tenure land in the year 2005. It also emerges from record that vide order dated 24.3.2006, Deputy Collector has granted conversion of land from New Tenure to Old Tenure. Copy of the order is at page 20, Annexure-B. This order is of 2006 and while passing the impugned order, Deputy Collector has taken into consideration various Government Resolutions beginning from 1996 till 2001 and also letters of Mamlatdar and other relevant documents. There is no documentary evidence produced by State in this matter suggesting that this order of conversion of the land has been set aside by any authority. Thus, order of conversion of land is still in existence. Further, it also appears from order of Deputy Collector dated 24.3.2006 that he has taken into consideration the Government Resolution dated 10 th May 2001, which has made provision for conversion of land from New Tenure to Old Tenure, even if any land which has been treated as excess land under the Land Ceiling Act. Thus, the government Resolution has provided for conversion of restricted Tenure Land to Old Tenure land, even if the land has come under the Land Ceiling limit. On perusal of the impugned Page 11 of 13 Downloaded on : Fri Jun 10 21:02:34 IST 2022 C/SCA/15928/2019 ORDER DATED: 09/06/2022 order of Collector as well as learned SSRD, observation is that as the land came under the head of "Land Ceiling", it cannot be converted to Old Tenure land. It appears that learned Collector as well as learned SSRD has cited Government Resolution of 2001, which has been taken into consideration by Deputy Collector while passing the order of conversion of land to Old Tenure land. Thus, from observations and basis of passing impugned order of not certifying revenue entry made on the basis of registered Sale Deed are completely against the Government's own resolutions.
8. It is also pertinent to note that the revenue authorities were dealing with proceedings under RTS and they were not dealing with matter under the Land Ceiling Act or Tenancy Act or any other law. Therefore, while dealing with the proceedings under RTS, the revenue authority ought not to have exercised its power under another enactment. Moreover, it also appears from record that after obtaining appropriate permission from Registrar, Cooperative Societies, the society has sold the land to the petitioner. Therefore, when there was a registered Sale Deed executed in consonance with law, it was incumbent on the part of the authority to make entry on the basis of registered Sale Deed. In the present case, authority has not certified the entry only on the ground that the land given to cooperative society cannot be converted into Old Tenure land. However, this fact has no legal support as even Government Resolution has permitted conversion of land, which falls under the Land Ceiling Act, and especially when the order of conversion of land is not set aside by any authority, the authority has to make revenue entry regarding sale transaction.
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9. Therefore, considering the facts and circumstances of the case, coupled with decisions cited at bar, which are referred herein above, impugned order deserves to be set aside. Accordingly, present petition is allowed. Impugned order dated 19.7.2018 passed in Revision Application No.MVV/HKP/ Kachchh/58/2018 whereby revision application filed by the petitioner came to be rejected and order of learned Collector, Kachchh dated 12.1.2018 is confirmed, is hereby quashed and set aside. No order as to costs. Direct service is permitted.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 13 of 13 Downloaded on : Fri Jun 10 21:02:34 IST 2022