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2011 DIGILAW 173 (GUJ)

Jayantibhai Manchharam Merie v. State of Gujarat

2011-03-08

M.R.SHAH

body2011
Judgment M.R. Shah, J.—By way of this petition under Articles 226 & 227 of the Constitution of India, the petitioner challenging the impugned order passed by the Revisional Authority, Secretary (Appeals), State of Gujarat dated 17.3.2004 in Revision Application No. 5 of 1997 as well as order passed by the Collector, Valsad dated 24.6.1996 passed in RTS Review Case No. 300 of 1993 by which while taking the mutation entry No. 485 dated 20.5.1968; mutation entry No. 269 dated 22.9.1970 and the last mutation entry No. 445 dated 20.9.1991, Collector, Valsad directed to initiate appropriate proceedings against the petitioner under Section 84 C of the Bombay Tenancy Act by observing that it is proved that the petitioner was non-agriculturist at the time when he purchased the land in question. 2. The facts leading to the present petition in nutshell are as under: 3. The land in question bearing Survey Nos. 57/2, 5, situated at village Bhensdhara Tal: Dharampur, Dist. Valsad was in the name of one Lakhabhai Raghabhai who sold the same to the petitioner for which mutation entry No. 485 was made dated 20.5.1968, which came to be certified by the Mamlatdar, Dharampur. It appears that the land bearing Survey No. 32 paiki of village Fulavadi was in the name of one Dahyabhai Parbubhai and in respect to the said land the mutation entry was made in favour of the petitioner by mutation entry No. 269 dated 22.9.1970 mutating the name of the petitioner as tenant/ Ganotia. The said order also came to be certified by the Mamlatdar, Dharampur on 6.11.1970. It appears that one another land bearing survey No. 36 paiki 1 situated at village Chinchojar was in the name of one Jagdishbhai Maganbhai, which came to be purchased by the petitioner and in respect of which a mutation entry No. 455 dated 20.9.1991 was made and the name of the petitioner was mutated in the revenue record. The said entry also came to be certified by the Mamlatdar. The said entry also came to be certified by the Mamlatdar. It appears that all the aforesaid entries came to be taken under Review by the Mamlatdar and thereafter a report was made to the Collector, Valsad and thereafter a show cause notice was issued upon the petitioner and others by the Collector, Valsad, which was registered as RTS Review Case No. 300 of 1993 and after giving an opportunity to all concerned, Collector, Valsad passed an order dated 24.6.1996 observing that it is proved that the petitioner original opponent No. 2 was non-agriculturist at the time when he purchased the land in question and therefore, the learned Collector, Valsad directed the Mamlatdar and ALT, Dharampur to initiate tee proceedings under Section 84 C of the Bombay Tenancy Act and to enter the name of the Government into revenue record. Being aggrieved and dissatisfied with the order passed by the Colllector, Valsad, the petitioner preferred RTS Revision Application No. 5 of 1997 before the Secretary (Appeals) Revenue Department, State of Gujarat and by impugned order dated 17.3.2004 the Revision Authority has dismissed the said revision application confirming the order passed by the Collector, Valsad dated 24.6.1996 passed in RTS Review Case No. 300 of 1993. Being aggrieved and dissatisfied with the aforesaid two orders, the petitioner has preferred the present Special Civil Application under Articles 226 & 227 of the Constitution of India. 4. Shri Shital Patel, learned Advocate for the petitioner has heavily relied upon the decision of this Court in the case of Govindji Chhabaji & Others vs. Prant Officer and Others reported in 2004(2) GLH 487 and another decision of this Court in the case of Jhaverbhai Savjibhai Patel through P.O.A holder Ashok J. Patel vs. Kanchanben Nathubhai Patel and Others reported 2005 (3) GLR 2233 , in support of his submission that the revenue authority while deciding the issue with respect to mutation entry has no jurisdiction to decide and/ or consider the breach of any other law and the entry on the basis of registered sale deed is required to be made, however as observed by this Court subject to reserving the liberty in favour of the appropriate authority to initiate appropriate proceedings under the law of which there is any breach alleged. Therefore, it is submitted that with above liberty at least the entry in favour of the petitioner is required to be continued and / or certified. 5. Shri Dave, learned AGP has submitted that as it was found after giving an opportunity to the petitioner that petitioner was non-agriculturist at the time when he purchased the land in question and therefore, the entry in favour of the petitioner was rightly under suo moty review and Collector was rightly passed an order directing the Mamlatdar to initiate the proceedings under Section 84 C of the Bombay Tenancy Act. 6. Having heard the learned advocates for the respective parties and considering the facts narrated hereinabove and considering the decision of this Court in the case of Govindji Chhabaji (Supra) and in the case of Jhaverbhai Savjibhai Patel (Supra) the impugned order passed by the Collector, Valsad as confirmed by the Revisional Authority deserves to be modified. As held by this Court in the aforesaid two decisions as well as in catena of decisions, the mutation entry in the revenue record is required to be made on the basis of the registered sale deed, however while certifying the same and / or considering the said entry if it is found by the appropriate authority that the said transaction / sale is in breach of any particular law it will always be open for the appropriate authority to refer the matter to the appropriate authority and/ or appropriate authority can initiate the appropriate proceedings for alleged breach, which may be considered in accordance with law. Considering the aforesaid, the mutation entry in favour of the petitioner with respect to land in question is directed to be continued / certified with above rider and with above liberty in favour of the appropriate authority. 7. In view of the above and for the reasons sated above, petition succeeds in part. Considering the aforesaid, the mutation entry in favour of the petitioner with respect to land in question is directed to be continued / certified with above rider and with above liberty in favour of the appropriate authority. 7. In view of the above and for the reasons sated above, petition succeeds in part. The impugned order passed by the Revisional Authority, Secretary (Appeals), State of Gujarat dated 17.3.2004 in Revision Application No. 5 of 1997 as well as oder passed by the Collector, Valsad dated 24.6.1996 passed in RTS Review Case No. 300 of 1993 are hereby modified to the extent that entry in favour of the petitioner on the basis of the registered sale deed be continued and/or certified, however with liberty in favour of the appropriate authority to initiate appropriate proceedings for alleged breach of Bombay Tenancy Act and / or under Section 84 C of the Bombay Tenancy Act and certification of the entry in favour of the petitioner shall not be bar in favour of the appropriate authority to initiate appropriate proceedings in accordance with law and on merits and as and when such an proceedings are initiated the same may be considered in accordance with law and at that stage whatever defences are available to the petitioner are kept open. Rule is made absolute to the aforesaid extent. P P P P P