Gujarat High Court
Desai Lataben Rajubhai & 2 vs State Of Gujarat Thro Secretary & 8 on 13 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10587/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10587 of 2012
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DESAI LATABEN RAJUBHAI & 2....Petitioner(s)
Versus
STATE OF GUJARAT THRO SECRETARY & 8....Respondent(s)
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Appearance:
MR TATTVAM K PATEL, ADVOCATE for the Petitioner(s) No. 1 - 3
MS NISHA THAKORE, AGP for the Respondent(s) No. 1 , 9
MR SHITAL R PATEL, ADVOCATE for the Respondent(s) No. 2 - 4 , 6 - 7
NOTICE SERVED for the Respondent(s) No. 5.1
NOTICE SERVED BY DS for the Respondent(s) No. 8 - 9
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 13/09/2017
ORAL ORDER
1. By this writapplication under Article 226 of the Constitution of India, the writapplicants call in question the legality and validity of the order dated 07/01/2012 passed by the Collector, Vadodara in RTS Suo Moto Case No.138/2011.
2. It appears from the materials on record that the father of the writ applicants late Rajubhai Mangalbhai Desai purchased a parcel of the land bearing Block No.511/1, situated at mouje Sherkhi, Taluka and District - Vadodara by a registered saledeed dated 19/11/2007. The sale transaction led to the mutation of an entry bearing No.8858 in the record of rights. It appears that the mutation of entry bearing No.8858 came to be objected by one Govindbhai Ambalal Padhiyar on the ground that he was the exclusive owner of the property and the execution of the Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun Oct 01 19:58:16 IST 2017 C/SCA/10587/2012 ORDER saledeed was a fraud. The proceedings came to be registered as the disputed case before the Mamlatdar. The Mamlatdar adjudicated the RTS Dispute Case No.24/2008 and passed an order dated 27/06/2008 cancelling the entry No.8858. The order passed by the Mamlatdar, Vadodara (Rural), reads as under: No. RTS/Dispute/Case/24/08 Mamlatdar Office, Vadodara (Rural) Vadodara, Date:27062008.
Applicant : Govindbhai Ambalal Padhiyar
residing at Bhimpura (Sherkhi),
postSevasi Umraya Lake,
Taluka & District Vadodara.
Opponent :(1) Rajubhai Mangalbhai Desai
residing at 4, Ashirwad Duplex,
Vasna Road, Vadodara.
(2) Lalitaben widow of
Mangalbhai Ramabhai Padhiyar
residing at Sherkhi,
Taluka & District Vadodara.
Disputed entry no.8858 dated 24122007 recorded for the land bearing Survey No.511/1 located at MoujeSherkhi, Taluka & District Vadodara.
Proceedings of dispute with respect to notice u/s 135 of Land Revenue Act.
The brief details of this case is such that the land bearing Survey No. 511/1 of village Sherkhi, Taluka & District Vadodara, admeasuring 10825 hectors, land of old tenure of Rs.1087 Paise is in the joint names of following persons (1) Padhiyar Shantaben widow of Ambalal Mahijibhai (2) Padhiyar Mangalbhai Ramabhai (3) Padhiyar Rupaben Ambalal (4) Padhiyar Ratansinh Ambalal (5) Padhiyar Shardaben Ambalal (6) Padhiyar Govindbhai Ambalal (7) Padhiyar Jamnaben Ambalal.
With respect to this land, Shri Rajubhai Mangalbhai Desai produced application dated 18122007, registered sale deed no.9941 executed for 0.5412 sq.mtrs land out of this land and index copy. As 5412 sq.mtrs out of this land was purchased, an application was given to enter the names, impugned entry no.8858 dated 24122007 was entered. As Govindbhai Ambalal Padhiyar filed an application raising objections against that entry, this dispute has arisen. In this case, sufficient time was given to the parties by fixing the adjournments on 21042008, 15052008, 22052008, 2905 2008, 09062008 and 16062008. Merits of this case were considered on last adjournment date and the matter was kept for judgment.
Page 2 of 5HC-NIC Page 2 of 5 Created On Sun Oct 01 19:58:16 IST 2017 C/SCA/10587/2012 ORDER Looking to the papers of mutation entries and considering the objection application, I have considered following details.
[1] Shri Rajubhai Mangalbhai Desai has purchased this land from Lalitabenwidow of Mangalbhai Ramabhai. But, her name was not entered as heir or as an occupier. But, she is heir of Mangal Rama.
[2] Land bearing Survey No.511 is of 10825 hectors and if, 5412 sq.mtrs out of that land is sold, the land gets fragmented.
[3] Out of the occupiers, Padhiyar Govindbhai Ambalal has raised objection. This land is undistributed and all the occupiers have right.
Considering all the aforesaid details, impugned entry no.8858 dated 2412 2007 is liable to be rejected. Therefore, following order has been passed in this case.
ORDER It is hereby ordered to reject the sale deed registration entry no.8858 dated 24122007 for the land bearing Survey No.511/1 admeasuring 108 25 sq.mtrs located at MoujeSherkhi, Taluka & District Vadodara.
Order be intimated to the parties.
Place: Vadodara sd/
Date: 27062008 illegible
(B.S.Patel)
Mamlatdar Vadodara (Rural)
Through RPAD
To,
Respective parties,
Copy Forwarded : edhara office for execution.
3. It is important to note that the order referred to above has attained finality. Late Rajubhai Mangalbhai Desai during his lifetime did not deem fit to challenge the order passed by the Mamlatdar, Vadodara Rural. Rajubhai Mangalbhai Desai passed away on 22/10/2009. Thereafter, all of a sudden, one another entry bearing No.9015 came to be mutated in the record of rights dated 16/07/2008 and was certified on 27/08/2008. This entry bearing No.9015 came to be mutated with respect to the very same transaction for which an entry No.8858 was mutated and was ordered to be cancelled.
Page 3 of 5HC-NIC Page 3 of 5 Created On Sun Oct 01 19:58:16 IST 2017 C/SCA/10587/2012 ORDER
4. In such circumstances referred to above, the Collector, Vadodara, thought fit to initiate the suo moto proceedings calling upon the parties concerned to show cause as to why the entry No.9015 should not be cancelled. It appears from the materials on record that a notice was issued to the original owners i.e. the sellers and to Rajubhai Mangalbhai Desai i.e. the purchaser. However, at the time, when the notice came to be issued, Rajubhai Desai was dead and gone. The only argument of the learned counsel appearing for the applicants is that as notice was issued to a dead person, the writapplicants being the legal heirs of Rajubhai Desai could not appear before the Collector and make good their case. It is not in dispute that the Mamlatdar, Vadodara Rural vide order dated 27/06/2008 declared the transaction to be in breach of the provisions of the Fragmentation Act. It is also not in dispute that the order dated 27/06/2008 has not been challenged till this date. Neither late Rajubhai Mangalbhai though fit to challenge the same nor after his demise, the writapplicants being the legal heirs thought fit to challenge the same. However, only with a view to give one opportunity to the writapplicants to make good their case as regards the mutation of an entry No.9015, I am inclined to remit the matter to the Collector, Vadodara for fresh consideration.
5. In the result, this application is allowed in part. The impugned order passed by the Collector, Vadodara, dated 07/01/2012 is hereby quashed. The matter is remitted to the Collector, Vadodara. The Collector, Vadodara, shall issue notice to the writapplicant of the hearing and on the date fixed for hearing, the writapplicants shall appear and make their submissions. The Collector shall thereafter pass an appropriate order in accordance with law.
Let this exercise be undertaken at the earliest and completed with Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Oct 01 19:58:16 IST 2017 C/SCA/10587/2012 ORDER a period of two months from the date of the receipt of this order. Till the conclusion of the proceedings before the Collector, Vadodara, the writ applicants are directed to maintain the status quo with regard to the property in question.
Direct service is permitted.
(J.B.PARDIWALA, J.) aruna Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Oct 01 19:58:16 IST 2017