Natwarlal Shivlal Thakkar v. Special Secretary, Revenue Department
2016-08-01
B.M.TRIVEDI
body2016
DigiLaw.ai
JUDGMENT : B.M. Trivedi, J. 1. The petitioners by way of present petition filed under Article 226 of the Constitution of India challenged the illegality and validity of the order dated 07.09.2011 (Annexure-A) passed by the Respondent No. 1 in RTS Revision Application No. 67 of 2010 and also the order dated 03.03.2010 (Annexure-I) passed by the Respondent No. 9-Collector in RTS Revision Application No. 110 of 2009 as also the order dated 07.02.2009 passed by the Respondent No. 10, the Deputy Collector in RTS Case No. 50 of 2008. 2. The short facts giving rise to the present petition are that the land in question being land bearing Block No. 1 situated at village Jolapur, Taluka Sanand, originally belonged to Shri Shivlal Chaturbhai i.e. father of the petitioner No. 1. The said Shivlal Chaturbhai expired on 24.12.1979 and after his death, the names of his legal heirs i.e. petitioner No. 1 and his brother Ratilal Shivlal were mutated in the revenue records. According to the petitioners, the said land was purchased by the said Shivlalbhai for the partnership firm viz. Laxmi Vijay Ginning and Processing Factory, and the same was mortgaged with the Bank of Baroda by way of security for obtaining loan for running the factory. Since, the said firm incurred heavy losses, the factory was closed and the Bank of Baroda filed Special Civil Suit No. 52 of 1983 for recovery of its dues. The said suit was subsequently transferred to the Debt Recovery Tribunal, Ahmedabad (hereinafter referred to as 'the DRT' for short), in which the settlement purshish was filed by the plaintiff bank and the defendants, including heirs of Ratilal Shivlal i.e. respondents Nos. 2 to 8 herein. It is further case of the petitioners that in view of the settlement purshish, the decree was passed by the DRT on 15.02.2005 in the said suit. However, prior to passing of the said decree, in another recovery proceedings being recovery proceedings No. 1412 in Civil Suit No. 13 of 1983, attachment of land in question along with machineries lying therein was made. Subsequently, the settlement came to be arrived at with the consent of Bank of Baroda and the property in question was sold out by the petitioner No. 1 in favour of the petitioner No. 2 for consideration of Rs. 5,75,000/- by executing a registered sale-deed on 02.05.2006. 3.
Subsequently, the settlement came to be arrived at with the consent of Bank of Baroda and the property in question was sold out by the petitioner No. 1 in favour of the petitioner No. 2 for consideration of Rs. 5,75,000/- by executing a registered sale-deed on 02.05.2006. 3. It is further the case of the petitioners that though the legal heirs of the deceased Ratilal Shivalal had signed the settlement purshish, they made an application for mutating their names in the revenue records as the heirs of the deceased Ratilal Shivlal in the year 2006, after death of Ratilal in 1989. The Mamlatdar, therefore rejected the said application vide the order dated 30.04.2008 (Annexure-F). Being aggrieved by the said order, the Respondent Nos. 2 to 8 i.e. the legal heirs of the deceased Ratilal Shivlal had preferred an appeal before the Deputy Collector, which came to be allowed vide order dated 07.02.2009 (Annexure-G) and subsequently, the entry No. 4919 came to be certified. The petitioner No. 1 being aggrieved by the said order had preferred RTS Revision Application No. 110 of 2009 before the Collector under section 108(6) of the Bombay Land Revenue Rules (hereinafter referred to as 'the said Rules' for short), which was rejected by the Collector vide order dated 03.03.2010 (Annexure-I). The petitioner No. 1 therefore, preferred the Revision Application before the Special Secretary, Revenue Department i.e. Respondent No. 1, which also came to be rejected vide the impugned order dated 07.09.2011 (Annexure-A). According to the petitioners, in the meantime, the respondent Nos. 2 to 8 had initiated civil proceedings by filing Civil Suits. However, they could not get any interim reliefs in the said suits. Simultaneously, the other proceedings with regard to mutation of name of the petitioner No. 2 in the revenue record pursuant to the sale-deed executed in favour of the petitioner No. 2 by the petitioner No. 1 were also pending. One Viramgam Mercantile Cooperative Bank from whom M/s. Laxmi Vijay Ginning Factory had taken loan had also initiated proceedings against the petitioners for mutating the bank's name in the revenue records. According to the petitioners, despite such proceedings being pending, the respondent No. 1 without considering the said proceedings had rejected the Revision application of the petitioners and therefore, the petition was filed. 4. The petition has been resisted by the respondent Nos.
According to the petitioners, despite such proceedings being pending, the respondent No. 1 without considering the said proceedings had rejected the Revision application of the petitioners and therefore, the petition was filed. 4. The petition has been resisted by the respondent Nos. 2 to 8 by filing the reply denying the allegations leveled against them in the petition and further contending inter alia that the land in question was ancestral property belonging to their grandfather Shivlal and therefore could not be treated as the property of the Firm. According to the said respondents, the petitioner No. 1 could not have sold out the property in favour of the petitioner No. 2 as the respondents also had their respective shares in the same. 5. It is sought to be submitted by learned Advocate Shri Dipak R. Dave for the petitioners that the respondent Nos. 2 to 8 had agreed to the settlement to sell the property in question for payment of the dues of the Bank of Baroda in the Recovery proceedings filed by the said Bank before the DRT and therefore, it does not lie in the mouth of the respondents to say that the said property did not belong to the Firm. Learned Advocate Shri Dave also relied upon the revenue entry being No. 2178 made on 06.12.1957 to submit that the land in question was purchased by Shivlal Chaturbhai as the administrator of the Firm viz. Laxmi Vijay Ginning and Processing Factory. It is further submitted that the Respondent Nos. 2 to 8 had tried to raise objections by initiating the proceedings for mutation of their names in the revenue record in the year 2006, though their father Ratilal Shivlal had expired in the year 1989. It is further submitted that there were other RTS proceedings and civil suits going on in respect of the land in question and therefore, the respondent No. 1 should not have permitted to certify the entry in favour of the concerned respondents. 6. However, learned Advocate Shri Chirag B. Patel for the Respondent Nos. 3 to 8 submitted that said Firm was not in existence in the year 1957 when the land in question was purchased, and therefore, the said land could not have been purchased by Shivlal Chaturbhai as the administrator of the said firm.
6. However, learned Advocate Shri Chirag B. Patel for the Respondent Nos. 3 to 8 submitted that said Firm was not in existence in the year 1957 when the land in question was purchased, and therefore, the said land could not have been purchased by Shivlal Chaturbhai as the administrator of the said firm. He further submitted that after death of Shivlal Chaturbhai, the property had devolved upon his two sons Ratilal and Natvarlal, and after the death of Ratilal the respondents being legal heirs, were entitled to get their names mutated in the revenue records. While admitting that the said respondents had signed the settlement purshish in the recovery proceedings before the DRT, Mr. Patel submitted that the petitioner No. 1 had no authority to sell the said land in favour of the petitioner No. 2. 7. In the instant case, it appears that after the registered sale-deed was executed by the petitioner No. 1 in favour of the petitioner No. 2, pursuant to the settlement arrived at in the recovery proceedings initiated by the Bank of Baroda against the firm Laxmi Vijay Ginning and Proceeding Factory, the pencil entry No. 4892 was made in the revenue record on 05.06.2006. However, the said entry was objected by the concerned respondents Nos. 2 to 8, who were the legal heirs of Ratilal Shivlal brother of the petitioner No. 1 contending, inter alia, that the land being ancestral land, their names were required to be mutated in the record of rights after the death of their father Ratilal. Hence, another pencil entry No. 4194 came to be made in this behalf. Thus, two RTS proceedings were filed for the very land in question, one with regard to mutation entry of the concerned respondents claiming succession after the death of Ratilal Shivlal and the other with regard to the registered sale-deed executed in favour of the petitioner No. 2. The said Entry No. 4194 came to be deleted as per the order of Mamlatdar passed in RTS Case No. 70 of 2006 on the ground that the land was in the name of partnership firm. However, the said order of Mamlatdar was set aside by the Deputy Collector in the appeal filed by the concerned respondents vide the order dated 07.02.2009 on the ground that it was not established that the land belonged to the partnership firm.
However, the said order of Mamlatdar was set aside by the Deputy Collector in the appeal filed by the concerned respondents vide the order dated 07.02.2009 on the ground that it was not established that the land belonged to the partnership firm. The said order of Deputy Collector was confirmed by the Collector as well as by the Respondent No. 1-Special Secretary, Revenue Department. 8. It further appears that the concerned respondents have already filed substantive suits before the concerned Civil Courts seeking declaration of their rights in the land in question, and the said suits are pending for adjudication. It is needless to say that the revenue entries are made only for fiscal purpose and they do not create any right, title or interest. Since, the concerned respondents have already filed the Civil suits and since, three respondents authorities have recorded concurrent findings in favour of the said concerned respondents, the Court is not inclined to interfere with the same, exercising jurisdiction under Article 227 of the Constitution of India. However, it is observed that the said disputed entry made in favour of the concerned respondents, shall be subject to the final outcome of the Civil Suits pending before the Civil Court. Whether the land in question belonged to the partnership firm and whether the concerned respondents had given their consent for selling the land to the petitioner No. 2 in recovery proceeding or not, being disputed questions of facts, the same could not be entertained in the present proceedings, more particularly, when the respondents have filed substantive suits seeking declaration of their right before the Civil Court. 9. In that view of the matter, the Court is not inclined to interfere with the impugned orders passed by the respondent authorities. However, it is observed that the disputed entry made in favour of the respondents shall be subject to final outcome of the Civil Suits filed by the concerned respondents. 10. Subject to these observations, present petition stands dismissed. Rule is discharged.