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Gujarat High Court · body

2009 DIGILAW 470 (GUJ)

Faruq Davood Bhula v. State of Gujarat

2009-07-16

D.A.MEHTA

body2009
Judgment D.A. Mehta,J.—This petition challenges order dated 25.9.2008/30.9.2008 made by respondent No.1 Authority in Revision Application No. MVV/HKP/ST/41/2003 which confirmed order dated 20.12.2002 made by Collector, Surat in RTS Revision Case Mangrol/36/Dhamdod/004 in the backdrop of the following facts and circumstances. 2. It is the say of the petitioner that father of the petitioner one Davood Mohamad Bhula acquired right, title and interest in agricultural land bearing survey No. 283 paiki 52, 125, 277 paiki and 278 situated at village Dhamdod, Taluka Mangrol, District Surat under oral gift made in favour of the petitioner under Mohammedan Law and the donor was Respondent No. 3 Isup Ismail Darsot. Pursuant to the said oral gift Entry No. 1004 came to be mutated on 11.5.1973 in the revenue record and the said Entry was certified on 11.6.1973 by Circle Officer, Kosamba. In 1996 Collector, Surat initiated suo-motu revisional procedings by issuing Show Cause Notice. After hearing the petitioner, the Collector has directed cancellation of the said Entry No. 1004 dated 11.5.1973. The petitioner carried the matter in revision. Respondent No.3 herein sought impleadment in the said proceedings and vide order dated 5.10.2007 permission was granted to Respondent No. 3 herein to be a party in the revisional proceedings. After hearing the parties the Revisional Authority has upheld the order made by the Collector for the reasons recorded in order dated 25.9.2008. 3. Learned Advocate for the petitioner has assailed both the orders made by the Collector and the Revisional Authority. In so far as the order made by the Collector is concerned, it was submitted that the revisional action had been initiated almost after a period of 23 years and therefore, not being within a reasonable period was bad in law. That action had been initiated on the basis of some inspection team who had reported that the land in question had been transferred under an oral agreement in violation of provisions of Section 17 of the Registration Act,1908 and, apart from mentioning the said provisions the Show Cause Notice referred to Section 54 of the Transfer of Property Act, 1882, Sections 2(6) and 63 of the Bombay Tenancy And Agricultural Lands Act, 1948 as well as Rule 36(1)(f) of Bombay Tenancy And Agricultural Lands Rules,1956, as well as provisions of the Stamp Act,1958. That after hearing the representatives of the petitioner, by referring to Government Resolution that no oral agreement should be taken into consideration after 1966 for mutating an entry, the Collector has directed to cancel the entry by recording violation of provisions of the Registration Act and the Transfer of Property Act as well as provisions of the Stamp Act. That as held by this High Court the Revenue Authority in the proceedings under the Bombay Land Revenue Code cannot record any opinion/finding as to violation of provisions of any other statute and therefore, the order of the Collector was bad in law. 3.1. Assailing the order of the Revisional Authority, it was submitted that the Revisional Authority had also committed an error in not considering the legal position, namely, the Revenue Authorities cannot consider the provisions of other statutes. That the Revisional Authority had exceeded its jurisdiction when it raised for the first time the issue as to service of notice under Section 135D of the Bombay Land Revenue Code,1879 without appreciating that the same did not form part of the subject matter of Show Cause Notice or the reasons which weighed with the Collector for making an order. That no adverse finding on this count could have been recorded by the Revisional Authority without granting an opportunity to the petitioner. That copy of the Entry which appears at Annexure ‘A’ itself recorded that the parties had been issued notice and after considering the reply tendered the Entry had been mutated and certified. Lastly it was submitted that it was well established in law, as held by this High Court, in the case of Pathan Talibkhan Abdul R. vs. Pathan Husenkhan Abdul, 2001(2) GLR 1139 that an oral transaction of gift of immovable property was a permissible mode of transfer under the Personal Law of Muslims and the provisions of Registration Act, otherwise applicable to immovable properties, cannot be applied in case of such oral transaction. 4. At first blush the contentions raised on behalf of the petitioner appear to be attractive. It is true that the Courts have consistently held that revisional powers under Section 211 of the Bombay Land Revenue Code can be exercised only within a reasonable period, normally such period being considered as of one year. 4. At first blush the contentions raised on behalf of the petitioner appear to be attractive. It is true that the Courts have consistently held that revisional powers under Section 211 of the Bombay Land Revenue Code can be exercised only within a reasonable period, normally such period being considered as of one year. However, at the same time, the Courts have consistently held that where the transaction is vitiated by fraud no limitation would stand in way of an Authority when the fraud comes to light. In the facts of the present case, if the order of the Collector is examined, it has categorically been recorded that the record reveals that the statement pursuant to notice under Section 135D of the Code which had been recorded was of one Yakub Yusuf Mulla, who was Power of Attorney Holder of Ibrahim Ismail Darsot and the said person, namely, Ibrahim Ismail Darsot had granted Power of Attorney both to Yakub Yusuf Mulla and Davood Mohamad Bhula, namely, father of the petitioner. Thus the record reveals that one Power of Attorney Holder has orally agreed to transfer the land in question to another Power of Attorney Holder. Thus in effect, both the Power of Attorney Holders, who derive their source of power from the owner of the land, have entered into a transaction so as to deprive the owner of the land. The transaction would in net result reflect the owner as having transferred property to himself which in law cannot be termed to be a valid transfer. 5. This conduct of the two Power of Attorney Holders has to be appreciated in light of the fact that when owner became aware of the transaction and the proceedings the owner immediately sought to implead himself before the Revisional Authority to protect his interest. The Revisional Authority granted permission to the owner to be impleaded and after hearing the owner came to the conclusion that the owner, whose interest was vitally affected, was never issued notice under Section 135D of the Code. It is not possible to accept the contention raised on behalf of the petitioner that the said issue could not have been raised and considered for the first time by the Revisional Authority as the said aspect had not been considered by the Collector. Factually the submission is incorrect. It is not possible to accept the contention raised on behalf of the petitioner that the said issue could not have been raised and considered for the first time by the Revisional Authority as the said aspect had not been considered by the Collector. Factually the submission is incorrect. At the cost of repetition, it is required to be noted that, the Collector had categorically referred to the factum of notice having been served and statement of the Power of Attorney Holder being recorded in favour of another Power of Attorney Holder in his personal capacity. 6. In so far as the contention that the order of the Collector has erroneously proceeded on an incorrect consideration of law by referring to violation of provisions of other statutes, a plain reading of the order of the Revisional Authority indicates that the said contention was raised by the petitioner and the said Authority has not upheld the order of the Collector on the said count. In other words, the contention on this count raised by the petitioner is accepted but the order is upheld for different reasons recorded by the Revisional Authority. 7. It is not possible to state that in these circumstances, the order of the Revisional Authority is in excess of the jurisdiction vested in the Revisional Authority. Once a revision is preferred the Revisional Authority is entitled in exercise of powers under Section 211 of the Code to examine the record of any proceedings for the purpose of satisfying itself as to legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer. Therefore, it is not possible to accept the contention that the powers of the Revisional Authority, which have been exercised by the Revisional Authority are in excess of jurisdiction vested in the Revisional Authority. The Revisional Authority has categorically recorded that the mutation of Entry No. 1004 on 11.5.1973 was in collusion by the two Power of Attorney Holders and thus a fraud was committed vitiating the transaction from its inception. 8. The Revisional Authority has categorically recorded that the mutation of Entry No. 1004 on 11.5.1973 was in collusion by the two Power of Attorney Holders and thus a fraud was committed vitiating the transaction from its inception. 8. In so far as the applicability of the Personal Law is concerned, the High Court in the aforesaid judgment has held that a person is empowered under the Mohammedan Law to make an oral gift and the necessary ingredients are : (a) There shall be a gift of the property by the donor; (b) the gift shall be a gift of the property by the donor; (c) possession of the property should be handed over to the donee. Applying the aforesaid principles to the facts of the case it becomes apparent that what is apparent is not real. The donor in question is parting with the property in favour of the donee but both of them are Power of Attorney Holders of the owner of the property. The owner of the property has challenged the transaction at the point of time when the owner became aware, considering the fact that the owner is staying abroad and the Power of Attorney was granted for the management of the property in question. The father of the petitioner was inducted in the land by the owner to carry out agricultural operations for and on behalf of the owner and could not have acquired the property in the manner the acquisition has taken place. Therefore, the Revisional Authority has rightly concluded that though it is not necessary to record the transaction in writing, nor is it necessary to have it registered, the transaction has to be completed in presence of a witness who testifies that the transaction of gift is completed. After observing thus the Revisional Authority has further recorded that if the parties have any grievance as regards the same, their respective rights can be got determined before the competent Civil Court in this regard. 9. In the aforesaid set of facts and circumstances of the case, the petition does not merit acceptance on any of the grounds pleaded and urged at the time of hearing. The petition is rejected. P P P P P