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2010 DIGILAW 356 (GUJ)

Vaghri Karsanbhai Fakirbhai v. State of Gujarat

2010-08-10

M.R.SHAH

body2010
Judgment M.R. Shah, J.—By way of this petition under Articles 226 and 227 of the Constitution of India, petitioner - seller of the land in question has prayed for appropriate writ, direction or order quashing and setting aside the impugned order dated 08.07.2010 passed by the Revisional Authority i.e. Secretary (Appeals), Revenue Department, State of Gujarat in Revision Application No. 7/2010 by which the Revisional Authority has refused to grant stay of the order passed by the Collector, Mehsana dated 29.12.2009 in R.T.S. Appeal No. 153/2009. 2. At the outset it is required to be noted that this Court is conscious of the fact that the present petition is filed challenging the order passed by the Revisional Authority in not granting stay during the pendency of the Revision Application. However, despite the fact that at the initial stage, he was pointed out that Revision Application is still pending, the learned Advocate appearing on behalf of the petitioner has made submission on merits for more than 30 minutes and has addressed the Court on merits and therefore, this Court is constrained to consider the case on merits as the learned Advocate appearing on behalf of the petitioner has invited the order on merits. 3. The facts leading to the present Special Civil Application in nut-shell are as under: Petitioner has sold the land in question in favour of Respondent No. 3 by registered sale deed dated 31.03.2003. It appears that there was a family dispute between the petitioner and his father Fakirbhai Chhaganbhai Vaghri and the petitioner had filed Regular Civil Suit No. 8/1997 before the learned Civil Judge, Senior Division, Mehsana for declaration and injunction. That the learned trial Court granted injunction application in favour of the petitioner - original plaintiff and the said suit came to be decreed by the learned trial Court by judgment and order dated 08.01.2007 passed by the learned trial Court. That the learned trial Court granted injunction application in favour of the petitioner - original plaintiff and the said suit came to be decreed by the learned trial Court by judgment and order dated 08.01.2007 passed by the learned trial Court. That being aggrieved and dissatisfied with the judgment and decree dated 08.01.2007, the original defendant - father of the petitioner, Fakirbhai Chhaganbhai Vaghri preferred First Appeal under Section 96 of the Code of Civil Procedure before the Additional District Judge, Mehsana which came to be dismissed by the learned Appellate Court vide judgment and order dated 25.01.2008 and even the Second Appeal against the judgment and order passed by the learned Appellate Court confirming the decree passed by learned trial Court came to be dismissed vide order dated 28.02.2008. That as stated above, prior thereto, petitioner sold the land in question vide registered sale deed dated 31.03.2003 and Respondent No. 3 tried to mutate his name in the revenue record on the basis of the aforesaid registered sale deed and in the meantime father of the petitioner had instituted one Special Suit No. 27/2005 challenging the registered sale deed which was executed by the petitioner in favour of Respondent No. 3. However, in view of the pendency of the Civil Suit No. 8/1997, name of Respondent No. 3 was not mutated in the revenue record. That after the judgment and decree dated 08.01.2007 passed by the learned trial Court in Regular Civil Suit No. 8/1997, Respondent No. 3 again approached the revenue authority for mutating his name in the revenue record. However, father of Respondent No. 3 expired on 13.02.2008 and ultimately, in view of the registered sale deed executed in favour of the father of Respondent No. 3, necessary entry was made in the revenue record on the basis of registered sale deed dated 31.03.2003. Being aggrieved and dissatisfied with the mutation entry No. 7712, petitioner preferred Appeal before the Deputy Collector under Rule 108(5) of the Gujarat Land Revenue Rules being Appeal No. 31/2009 and the Deputy Collector, Mehsana allowed the said Appeal by quashing and setting aside mutation entry No. 7712. Being aggrieved and dissatisfied with the mutation entry No. 7712, petitioner preferred Appeal before the Deputy Collector under Rule 108(5) of the Gujarat Land Revenue Rules being Appeal No. 31/2009 and the Deputy Collector, Mehsana allowed the said Appeal by quashing and setting aside mutation entry No. 7712. That being aggrieved and dissatisfied with the order passed by the Deputy Collector, Mehsana dated 29.08.2009 in Appeal No. 31/2009, Respondent No. 3 preferred the Revision Application/Appeal No. 153/2009 before the Collector, Mehsana and the Collector, Mehsana by order dated 27.12.2009 allowed the said Appeal/Revision Application quashing and setting aside the order passed by the Deputy Collector, Mehsana cancelling the mutation entry No. 7712 and directed to restore the mutation entry No. 7712. That being aggrieved and dissatisfied with the order passed by the Collector, Mehsana dated 29.12.2009, petitioner preferred Revision Application No. 7/2010 before the Secretary (Appeals), Revenue Department, State of Gujarat alongwith the stay application and the petitioner prayed to grant stay of the order dated 29.12.2009 passed by the Collector, Mehsana in restoring the mutation entry No. 7712 which was on the basis of the registered sale deed dated 31.03.2003. That the learned Secretary (Appeals), Revenue Department, State of Gujarat by impugned order dated 08.07.2010 has dismissed the said application refusing to grant stay of the stay of the order passed by the Collector, Mehsana dated 29.12.2009, during the pendency and final disposal of the Revision Application No. 7/2010. Being aggrieved and dissatisfied with the impugned order passed by the Revisional Authority dated 08.07.2010 passed in Revision Application No. 7/2010, in not granting the interim stay of further implementation and operation of the order passed by the Collector, Mehsana dated 29.12.2009, in restoring the mutation entry No. 7712, petitioner - seller has preferred the present Special Civil Application under Articles 226 and 227 of the Constitution of India. 4. 4. Shri Satyam Chhaya, learned Advocate appearing on behalf of the petitioner has submitted that as such when the petitioner executed the sale deed in favour of Respondent No. 3 - father of Respondent No. 3 on 31.03.2003, the order of status-quo granted by the learned trial Court in Regular Civil Suit No. 8/1997 was in force and the Regular Civil Suit No. 8/1997 was pending and therefore, when the said transaction was in breach of the order of status-quo in Regular Civil Suit No. 8/1997, Collector has materially erred in directing to restore mutation entry No. 7712 on the basis of the registered sale deed dated 31.03.2003. It is further submitted that even otherwise, in view of the pendency of the Special Civil Suit No. 27/2005 filed by the father of the petitioner i.e. Fakirbhai Chhaganbhai Vaghri, Collector, Mehsana ought not to have passed the order to restore the mutation entry No. 7712 and/or the Collector ought to have passed the order of mutating the said entry subject to ultimate outcome of Special Civil Suit No. 27/2005. Shri Chhaya, learned Advocate appearing on behalf of the petitioner has heavily relied upon two decisions of learned Single Judge of this Court in the case of (1) Jhaverbhai Savjibhai Patel Thro’ POA Holder Ashok J. Patel vs. Kanchanben Nathubhai Patel & Ors. reported in 2005 (3) G.L.H. 657 and (2) Gandabhai Dalpatbhai Patel vs. State of Gujarat reported in 2005 (2) GLR 1370 . Relying upon above decisions, it is submitted and requested that even while pasting mutation entry on the basis of registered sale deed dated 31.03.2003, an additional entry is required to be made and the same is subject to Special Civil Suit No. 27/2005 filed by Fakirbhai Chhaganbhai Vaghri, father of the petitioner. It is further submitted that even otherwise while certifying entry No. 7712, no proper procedure was followed and the entry of judgment and that too without issuing 135D notice. While making above submissions, Shri Chhaya, learned Advocate appearing on behalf of the petitioner requested to admit/allow the present petition. 5. Heard Shri Chhaya, learned Advocate appearing on behalf of the petitioner at length and for more than 30 minutes. While making above submissions, Shri Chhaya, learned Advocate appearing on behalf of the petitioner requested to admit/allow the present petition. 5. Heard Shri Chhaya, learned Advocate appearing on behalf of the petitioner at length and for more than 30 minutes. At the outset it is required to be noted that petitioner is the seller of the land in question who sold the land in favour of father of Respondent No. 3 by registered sale deed and on payment of full sale consideration. Therefore, it is not appreciable how the petitioner who has sold the land in question to the father of Respondent No. 3 by executing sale deed and having pocketed the full sale consideration, can challenge the mutation entry which has been posted on the basis of the registered sale deed by him. It is to be noted that petitioner has never challenged the sale transaction and/or sale deed executed by him, executed in favour of father of Respondent No. 3. Therefore, the present petition at the instance of the petitioner, who is seller, to challenge the mutation entry which is on the basis of the sale deed executed by him is not required to be entertained and is required to be dismissed. 6. It is to be noted that now it is the case on behalf of the petitioner that when he executed the sale deed in favour of father of Respondent No. 3, (who is not alive now), the same was in breach of the order of status-quo granted by the learned trial Court in Civil Suit No. 8/1997 and therefore, mutation entry is not required to be posted on the basis of such a registered sale deed. The aforesaid cannot be accepted. It is very unfortunate that the petitioner who has executed registered sale deed is coming before the Court submitting that the sale deed executed by him is in breach of order of status-quo. If that is so, then in that case, straightway an action is required to be taken against the petitioner who is now submitting before the Court that sale deed executed by him is in breach of order of status-quo. If that is so, then in that case, straightway an action is required to be taken against the petitioner who is now submitting before the Court that sale deed executed by him is in breach of order of status-quo. When it was pointed out to the learned Advocate appearing on behalf of the petitioner that straightway the case of breach of injunction is made out against the petitioner and an action can be taken against the petitioner, as he is submitting the same on affidavit, Shri Chhaya, learned Advocate appearing on behalf of the petitioner submitted that he is knowing the repercussion. Petitioner cannot be permitted to take the benefit of his own wrong. As such nothing is on record what interim relief was granted by the learned trial Court in the aforesaid suit. Nobody has initiated any proceedings under Order 39 Rule 2(A) of the Code of Civil Procedure. If any appropriate proceedings are initiated, the aforesaid aspect can be considered. However, on the aforesaid grounds, now the mutation entry which is posted on the basis of registered sale deed dated 31.03.2003, is not required to be quashed and set aside. 7. Now, so far as contention on behalf of the petitioner that in view of the pendency of the Special Civil Suit No. 27/2005 filed by father of petitioner Fakirbhai Chhaganbhai Vaghri, Collector ought not to have restored mutation entry No. 7712 on the basis of registered sale deed dated 31.03.2003, which has been challenged by the father of the petitioner in the aforesaid Special Civil Suit No. 27/2005 and/or the Collector ought to have passed the order in making additional entry in the revenue record with aforesaid entry, is subject to Special Civil Suit No. 27/2005 filed by Fakirbhai Chhaganbhai Vaghri. The aforesaid also cannot be accepted. First of all petitioner cannot make the grievance with respect to posting of mutation entry No. 7712 which is on the basis of registered sale deed executed by the petitioner. If at all any person who can make grievance is, his father Fakirbhai Chhaganbhai Vaghri who has instituted Special Civil Suit No. 27/2005, who has not made any grievance. First of all petitioner cannot make the grievance with respect to posting of mutation entry No. 7712 which is on the basis of registered sale deed executed by the petitioner. If at all any person who can make grievance is, his father Fakirbhai Chhaganbhai Vaghri who has instituted Special Civil Suit No. 27/2005, who has not made any grievance. It appears that for some oblique and malafide reason, petitioner is objecting to the mutation entry No. 7712 though he has sold the land by registered sale deed in favour of father of Respondent No. 3 and has pocketed the sale consideration. 8. Now, so far as reliance placed upon the decisions of this Court in the case of Gandabhai Dalpatbhai Patel (Supra) and Jhaverbhai Savjibhai Patel Thro’ POA Holder Ashok J. Patel (Supra) are concerned, in the facts and circumstances of the present case, the same would not be of any assistance to the petitioner. In the aforesaid two cases, the persons who have objected to the mutation entry were challenging the sale deed, which in one case, was executed by POA holder and in another case also, the authority of the person who executed the sale deed was disputed. In the present case, the petitioner who is objecting to the mutation entry No. 7712 which is on the basis of the registered sale deed executed by him dated 31.03.2003, is not challenging the sale deed dated 31.03.2003 and the person who is objecting to the registered sale deed is not challenging the mutation entry No. 7712. Under the circumstances, the aforesaid decisions would not be of any assistance to the petitioner. 9. In view of the above, when the Revisional Authority has refused to grant the stay of the order passed by the Collector, Mehsana, by which the Deputy Collector quashed and set aside the mutation entry No. 7712 by restoring mutation entry No. 7712 on the basis of registered sale deed dated 31.03.2003, it cannot be said that the Revisional Authority has committed any error and/or illegality and/or acted contrary to the provisions of statues, which calls for interference of this Court in exercise of powers under Articles 226 and 227 of the Constitution of India. It is not that in each and every case, when the Revisional Authority is pending, the interim stay must follow. It is not that in each and every case, when the Revisional Authority is pending, the interim stay must follow. It depends upon the facts and circumstances of the case and a prima facie case being made out against the order challenged before the Revisional Authority. If the Revisional Authority finds that there is no prima facie case and the order passed by the authority, impugned in the Revision Application, is just and proper, Revisional Authority may refuse to grant any interim relief. The Revisional Authority is required to admit the Revision Application as there is no provision to dismiss the Revision Application at the threshold and/or at the admission stage. 10. In view of the above and for the reasons stated above, there is no substance in the present petition which deserves to be dismissed with exemplary cost which is quantified at Rs.10,000/- which the petitioner is directed to deposit with Registry of this Court within a period of four weeks from today. On deposit of the aforesaid amount, Registry is directed to transmit the same to Gujarat High Court Legal Aid Committee.