Indian Kanoon - Search engine for Indian Law

Gujarat High Court

Rathod Devjibhai Mafatbhai vs State Of Gujarat on 15 April, 2019

Author: A.J. Desai

Bench: A.J.Desai

        C/SCA/7354/2019                             ORDER



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 7354 of 2019

=============================================
                      RATHOD DEVJIBHAI MAFATBHAI
                                 Versus
                           STATE OF GUJARAT
=============================================
Appearance:
MR A M CHAUHAN(3439) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4
MR RAKESH PATEL, ASSTT. GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
=============================================
 CORAM: HONOURABLE MR.JUSTICE A.J.DESAI

                           Date : 15/04/2019

                             ORAL ORDER

[1.0] By way of present petition under Articles 14, 19(1)(g), 226 and 227 of the Constitution of India, following prayers have been made.

"(A) That the honourable Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned order at Annexure C dated 15­01­2019 passed by the Additional Secretary, Revenue Department - respondent No.1;

(B) That the honourable court be pleased to issue a writ of certiorari or any other appropriate writ, order or direction holding that the impugned order at Annexure C dated 15­01­2019 passed by the Additional Secretary, Revenue Department, ­ respondent No.1 is illegal, unjust, perverse and is required to be quashed an set aside;

(C) Pending admission and till final hearing of this Special Civil Application, the honourable court be pleased to stay implementation and operation of the impugned order at Annexure C dated 15­01­2019 passed by the Additional Secretary, Revenue Department, ­ respondent No.1;"

[2.0] The short facts arising from the record are as follows:

[2.1] That a parcel of land having Survey No.95 of village Metpur, Taluka Khambhat belonged to one Jiviben who was widow of one Tribhovandas Morarbhai. Said Jiviben having no children, executed a Will in favour of respondent Patel Ramanbhai Maganbhai. Subsequent to her death, an Entry No.388 was mutated on 08.06.1995 and the same was certified on 16.07.1995.

[2.2] The petitioner herein who is one of the legal heirs of brother of Tribhovandas Morarbhai i.e. son of Danabhai Morarbhai challenged the said Entry No.388 before the Deputy Collector, Khambhat by way of filing Appeal No.173/2014 under Rule 108(5) of the Bombay Land Revenue Rules, 1972 (hereinafter referred to as "Land Revenue Rules").

[2.3] The Deputy Collector, Khambhat by his order dated 30.05.2016 partly allowed the appeal and the matter was remanded back to Mamlatdar, Khambhat for fresh hearing.

[2.4] The said order dated 30.05.2016 was challenged by the private respondent No.4 herein by way of filing Revision Application No.401/2016 before the Collector, Anand under the provisions of Rule 108(6) of the Land Revenue Rules. That the Collector, Anand vide its order dated 30.05.2018 dismissed the Revision Application No.401/2016 and directed the Mamlatdar, Khambhat to conclude the case on remand within three months.

[2.5] That being aggrieved with the said order dated 30.05.2016, the private respondent No.4 herein moved the Special Secretary, Revenue Department (Appeals) by way of filing Revision Application No.80/2018 under Rule 108(6A) of the Land Revenue Page 2 of 4 C/SCA/7354/2019 ORDER Rules. The Additional Secretary, Revenue Department (Appeals), Ahmedabad vide its order dated 15.01.2019, allowed the revision application in favour of the private respondent No.4 by observing that if any civil or criminal proceedings are filed before the competent Courts then the entry in question would be binding to the parties and would be subject to outcome of that proceedings.

[2.6] Hence, present petition.

[3.0] Mr. A.M. Chauhan, learned advocate appearing on behalf of the petitioner would submit that the petitioner is one of the legal heirs of original land owner - Morarbhai Valabhai Vankar, who had three sons viz. deceased Tribhovandas, deceased Dudhabhai and deceased Danabhai. With regard to Survey No.95, name of wife fo Tribhovandas viz. Jiviben was mutated in the revenue record. He would submit that said Tribhovandas and Jiviben had no children and therefore, on the death of Jiviben, names of legal heirs from other branch should have been mutated by the revenue authorities. Instead of the same, relying upon a bogus Will, name of private respondent was mutated. Having come to know about such entry No.388, petitioner has challenged the entry in the year 2014 and therefore, the authority has committed error in allowing the revision application only on the ground of delay in challenging the entry.

[3.1] He would submit that Entry No.388 is mutated on demise of Jiviben as if Jiviben has expired on 20.04.1992 whereas, as per the death certificate, Jiviben expired on 20.12.1986. He would further submit that even the Will is concocted one for which an FIR has been filed before the concerned police station in which charge­ sheet has been filed. He, therefore, would submit that the impugned order be quashed and set aside.

[4.0] I have heard learned advocate Mr. A.M. Chauhan appearing for the petitioner. Perused the impugned order. It appears that the entry No.388 was mutated in the year 1995 and certified thereafter in favour of private respondent No.4 and name of respondent No.4 is existing in the revenue record since then. The petitioner challenged the same only after a period of 19 years i.e. in the year 2014. There is delay and laches on the part of the petitioner in challenging the entry. It is also pertinent to note that neither the father of the petitioner nor any other legal heirs have challenged the said entry. It is also pertinent to note that none of the legal heirs of Dudhabhai and Danabhai including the present petitioner has challenged the Will before the competent Civil Court. However, as observed by the Additional Secretary, Revenue Department (Appeals) in the impugned order, the entry No.388 would be binding to the parties if any civil or criminal proceedings are pending before the concerned Court.

[5.0] In view of the above facts and observations made by the Additional Secretary, Revenue Department (Appeals), I do not find any reason to entertain the present petition. Hence, petition is dismissed. It is made clear that the entry proceedings are only for fiscal purpose and do not create any legal right in favour of either party with regard to the property in question.

(A.J. DESAI, J.) Ajay Page 4 of 4