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2017 DIGILAW 281 (GUJ)

EKTA Developers v. Special Secretary & 3

2017-02-03

R.SUBHASH REDDY, V.M.PANCHOLI

body2017
ORDER : VIPUL M. PANCHOLI, J. This application is filed by the applicant - original respondent - petitioner wherein the applicant has prayed for the following relief/s: “(i) That, this Honourable Court be pleased to review the contents of paragraph 6 of the judgment and order dated 25th April, 2014 passed in Letters Patent Appeal No. 369 of 2014, a copy of which figures at Annexure II to the present application and thereupon, be pleased to recall the same from the said judgment and order dated 25th April, 2014 passed in Letters Patent Appeal No. 369 of 2014. (ii) That, this Honourable Court be pleased to award the cost of the present application. (iii) That, this Honourable Court be pleased to pass such other and further relief as the nature and circumstances of the case may demand.” 2. It is the case of the applicant that a parcel of land comprising Survey No. 2/9 of village Dharampur, Taluka Ranavav, District Porbandar admeasuring in all 55 acres came to be purchased by the applicant for consideration of Rs. 49,88,000/- in the proceedings initiated before the Debt Recovery Tribunal, Mumbai (hereinafter referred to as the DRT) at the instance of the secured creditors of the company viz. Fit Tight Nuts and Bolts Ltd. Thereafter, the registered deed of conveyance was executed in favour of the applicant on 06.11.2004 by the Bank of India as secured creditor of the said company and as per the directions of DRT. 3. After the execution of the sale deed in favour of the applicant, applicant submitted an application before the Mamlatdar seeking mutation of its name in the revenue record concerning the said land as the owner thereof. The concerned Mamlatdar mutated the entry in favour of the applicant in the revenue record. However, the Collector, Porbandar initiated suo moto revision and by order dated 24.07.2008, the order passed by the Mamlatdar came to be quashed and set aside. Against the said order, applicant preferred revision application before the State Government. The Special Secretary (Appeals) Revenue Department allowed the said revision application and remanded the matter back to the Collector for taking the decision afresh. 4. The Collector once again passed an order and thereby quashed and set aside the order passed by the Mamlatdar. The applicant thereafter directly approached this Court by filing Special Civil Application. The Special Secretary (Appeals) Revenue Department allowed the said revision application and remanded the matter back to the Collector for taking the decision afresh. 4. The Collector once again passed an order and thereby quashed and set aside the order passed by the Mamlatdar. The applicant thereafter directly approached this Court by filing Special Civil Application. However, the said petition was withdrawn with a view to file a revision before the SSRD. 5. The SSRD rejected the said revision application by an order dated 29.06.2011 and confirmed the order passed by the Collector against which the applicant filed Special Civil Application No. 14797 of 2011 before this Court. The learned Single Judge by an order dated 03.12.2013 allowed the said petition and direction was given to the opponents to undertake necessary steps for mutating the name of the applicant in the revenue record concerning the said land as the owner thereof on the basis of the registered deed of conveyance within the stipulated time limit. 6. It is the case of the applicant that the opponents herein preferred Letters Patent Appeal No. 369 of 2014 before the Division Bench of this Court. The Division Bench, by an order dated 25.04.2014, dismissed the appeal filed by the opponents with categorical finding that there was no reason to interfere with the judgment and order passed by the learned Single Judge. However, in para 6 of the said judgment and order, the observation was made that the factum of pendency of appeal preferred by the opponent No. 2 before the Debts Recovery Appellate Tribunal, Mumbai challenging the sale of the land in question in favour of the applicant by DRT be recorded in the revenue record and it was also observed that the applicant should seek permission of this Court in the event the applicant intends to deal with the said land. 7. It is further the case of the applicant that the applicant filed a note for speaking to minutes in respect of the observations made in para 6 of the order. However, the said note was disposed of by observing that no order was warranted in respect of the same. The applicant, therefore, filed Special Leave Petition (C) Nos. 19396 of 2014 and 19397 of 2014 before the Hon'ble Supreme Court. 8. However, the said note was disposed of by observing that no order was warranted in respect of the same. The applicant, therefore, filed Special Leave Petition (C) Nos. 19396 of 2014 and 19397 of 2014 before the Hon'ble Supreme Court. 8. At the same time, the opponents also filed Special Leave Petition (C) No. 35850 of 2014 challenging the judgment and order dated 25.04.2014 passed by the Division Bench of this Court in Letters Patent Appeal No. 369 of 2014 to the extent the same was having the effect of rejecting the said appeal filed by the opponents and maintaining the judgment and order dated 03.12.2013 passed by the learned Single Judge in Special Civil Application No. 14797 of 2011. 9. It is stated that Special Leave Petition filed by the opponents came to be dismissed on the premises that the same was lacking in merits, whereas the SLPs filed by the applicant were permitted to be withdrawn with a liberty to prefer an application before this Court for review of the directions contained in para 6 of the judgment and order dated 25.04.2014 in Letters Patent Appeal No. 369 of 2014 with a further clarification that the order passed on the aforesaid note for speaking to minutes shall not come in the way of the applicant in preferring the application for review and in the event the order passed in the said application for review is against the applicant, it would be open for the applicant to approach the Hon'ble Supreme Court against the same. 10. It is therefore stated that as per the permission granted by the Hon'ble Supreme Court, the applicant has filed the present review application for review of the directions issued in para 6 of the aforesaid judgment passed by the Division Bench. 11. Heard learned Senior Counsel Mr. D.C Dave assisted by learned advocate Mr. Jigar M. Patel for the applicant and learned Assistant Government Pleader Mr. D.M Devnani for the opponents. 12. Learned Senior Counsel referred to the order dated 03.12.2013 passed by the learned Single Judge in Special Civil Application No. 14797 of 2011 and submitted that even before the auction sale, the opponents had communicated to the Debt Recovery Tribunal that 50% of the unearned profit should be payable to the Government as premium as a Government right on such new tenure land. Thus, the stand of the opponents was only with regard to the recovery of their dues as unearned profit and the premium towards the land. Therefore, they had communicated very specifically to the Tribunal to keep aside 50% of realized amount from the auction sale of the land in question before the Debt Recovery Tribunal. Thereafter, the office of Collector, by letter dated 09.01.2016, called upon the applicant petitioner to deposit the amount toward the premium. Thus, with open eyes the respondents have directed the petitioner to deposit 50% of the amount realized in an auction by the Debt Recovery Tribunal. The applicant - petitioner has deposited 50% of the amount towards the premium and communication specifically stated that on payment, entries could be mutated as directed by the Government. Learned Single Judge has therefore specifically observed that there is no justification now to have any shift in the stand because in the process and passage of time, the value of the land may have increased. It is specifically observed by the learned Single Judge that in the facts and circumstances of the case and on principle of propriety as well as fair play, in their auction the respondent Government cannot now insist for a price for the mutation of an entry without any basis or justification. Learned Single Judge therefore quashed the order passed by the SSRD as well as Collector and directed the respondents to take necessary steps for mutation of entries within stipulated time limit. 13. Learned counsel thereafter referred to the order dated 25.04.2014 passed by the Division Bench in Letters Patent Appeal No. 369 of 2014 and submitted that the Division Bench in paragraph 4 has specifically observed that the Court finds that there is no reason to interfere with the order passed by the learned Single Judge dated 03.12.2013 and also observed that the subject matter will be governed by the outcome of the appeal pending before the Debt Recovery Appellate Tribunal, Mumbai. However, there appears an error apparent on the face of the contents of para 6 of the said judgment and order inter-alia warranting recall of the same, inasmuch as the same are ex-facie out of the context and hence unwarranted. However, there appears an error apparent on the face of the contents of para 6 of the said judgment and order inter-alia warranting recall of the same, inasmuch as the same are ex-facie out of the context and hence unwarranted. Once this Court is of the opinion that the Letters Patent Appeal preferred by the opponent was absolutely lacking in merit and thereupon deserves an outright rejection, it goes without saying that thereafter the question of recording something against the applicant of the nature reflected from paragraph 6 of the said judgment and order does not arise at all. Hence, it is contended that there is an apparent error on the face of the record and therefore this review application be allowed. 14. Learned counsel thereafter would submit that the real issue and controversy before the learned Single Judge in special civil application was confined to the solitary aspect as to whether the revenue authorities in charge of mutation of entries in the revenue record concerning the said land were having the jurisdiction to decline to mutate the name of the applicant in the revenue record in respect of the land in question on the basis of the registered deed of conveyance or not. Thus, while dealing with the aforesaid only issue, the learned Single Judge was of the opinion that the revenue authorities were not justified in declining to mutate the name of the applicant as an owner of the land in question in the revenue record and thereupon when the Division Bench of this Court in the judgment and order dated 25.09.2014 was of the opinion that no interference was called for in respect of the said view of the learned Single Judge, there was no justification for the Division Bench to clarify that the fact with regard to pendency of appeal before the Debt Recovery Appellate Tribunal, Mumbai be recorded in the revenue record and the land in question should not be alienated by the person having his name entered pursuant to the sale deed dated 06.11.2004 and further observing that in the event the person wants to deal with that property, he should seek permission of this Court. Thus, in the facts and circumstances of the case, there is an error apparent on the face of the record looking to the controversy involved in the petition and therefore the present review application be allowed. 15. Thus, in the facts and circumstances of the case, there is an error apparent on the face of the record looking to the controversy involved in the petition and therefore the present review application be allowed. 15. Learned Senior Counsel thereafter submitted that the appeal preferred by the opponent No. 2 as referred to in para 6 of the impugned judgment and order was admittedly barred by the period of limitation as on the date on which the same was preferred before the Debt Recovery Appellate Tribunal, it is submitted that there is a delay of more than four and half years in preferring the appeal before the Debt Recovery Appellate Tribunal and though the Division Bench has passed an order on 25.04.2014 till today the application filed for condonation of delay is not entertained. Thus, it is submitted that the opponents are on one hand not taking any interest in pursuing their remedy before the Debt Recovery Appellate Tribunal and on the other hand when the applicant who has bona fidely purchased the land in question in an auction held before the Debt Recovery Tribunal pursuant to which conveyance deed is also executed in its favour, is suffering because of the observations made in para 6 of the judgment and order dated 25.04.2014 passed in Letters Patent Appeal No. 369 of 2014. 16. It is further submitted that the Special Leave Petition preferred by the State Government is dismissed by the Hon'ble Supreme Court and therefore the order passed by the learned Single Judge and order of rejection of the appeal are confirmed and therefore at this stage it is not open for the opponents to contend on the merits of the case. Hence, this application be allowed. 17. In support of the aforesaid judgment, learned counsel has placed reliance upon the decision of the Hon'ble Supreme Court rendered in the case of Suraj Bhan v. Financial Commissioner, reported in (2007) 6 SCC186. 18. On the other hand, learned Assistant Government Pleader has submitted that the present review application is misconceived as essentially the applicant is seeking to correct the judgment and order passed by the Division Bench and raised the contentions as if the applicant is arguing the appeal against the judgment and order passed by the Division Bench. 18. On the other hand, learned Assistant Government Pleader has submitted that the present review application is misconceived as essentially the applicant is seeking to correct the judgment and order passed by the Division Bench and raised the contentions as if the applicant is arguing the appeal against the judgment and order passed by the Division Bench. Learned AGP referred to the provisions contained in Order 47 Rule 1 of the Code of Civil Procedure, 1908 and submitted that the review is not an appeal in disguise, whereby an erroneous decision is reheard and corrected. This application is an attempt on the part of the applicant to exercise appellate powers by correcting the alleged errors in the judgment and order dated 25.04.2014 passed by the Division Bench. It is submitted that even otherwise an error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record and therefore this Court may not rehear the entire matter and correct an alleged erroneous decision. In support of his contention, learned AGP has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Bagirathi Ammal v. Pilalani Roman Catholic Mission, reported in (2009) 10 SCC 464 . 19. Learned AGP has thereafter submitted on merits and contended that the State Government has challenged the order passed by the Debt Recovery Tribunal by filing an appeal before the Debt Recovery Appellate Tribunal, Mumbai and the same is pending. It is further contended that this is a serious case where the authorities feel that there is a huge loss to the public exchequer and the land which was allotted by the Government to the original owner on certain conditions is transferred to the applicant behind the back of the Government at a throwaway price. 20. We have heard the learned counsel appearing for the parties and we have also considered the material produced on record. It has emerged from the record that the applicant has purchased the land in question in the proceedings initiated before the Debt Recovery Tribunal, Mumbai at the instance of the secured creditor of the concerned company. 20. We have heard the learned counsel appearing for the parties and we have also considered the material produced on record. It has emerged from the record that the applicant has purchased the land in question in the proceedings initiated before the Debt Recovery Tribunal, Mumbai at the instance of the secured creditor of the concerned company. Thereafter, the registered deed of conveyance was executed on 06.11.2004 in favour of the applicant by the Bank of India as secured creditor of the concerned company as per the directions of Debt Recovery Tribunal, Mumbai. Initially, Mamlatdar passed an order by which the name of the applicant came to be mutated in the revenue record. However, thereafter the Collector and SSRD have held against the applicant. Applicant has, therefore, preferred petition before this Court and the learned Single Judge allowed the said petition and thereby directed the opponents herein to take necessary steps for mutation of the entries within stipulated time limit. Against the said order, the opponents filed Letters Patent Appeal No. 369 of 2014 before the Division Bench of this Court. The Division Bench, by an order dated 25.04.2014, rejected the said appeal against which the opponents filed Special Leave Petition before the Hon'ble Supreme Court. The said SLP is also dismissed. However, the limited issue which is required to be considered in this review application is whether there is an apparent error in para 6 of the order dated 25.04.2014 passed by the Division Bench in Letters Patent Appeal No. 369 of 2014 or not. 21. From the record, it is clear that the land in question was required by the company viz. Fit Tight Nuts and Bolts Ltd. for the purpose of business operations. The said company had requested the Government for allotment of the said land and accordingly the State Government passed an order of allotment of the land in question through Collector, Junagadh. However, thereafter the said company has failed to discharge the financial obligation towards the financial institutions and therefore initially the proceedings were initiated against the said company before the Bombay High Court which were later on transferred to the Debt Recovery Tribunal, Mumbai. In the proceedings before the Debt Recovery Tribunal, the land in question was subjected to auction sale towards the recovery of the outstanding dues. In the proceedings before the Debt Recovery Tribunal, the land in question was subjected to auction sale towards the recovery of the outstanding dues. The applicant participated in the said auction process and purchased the land in question for the sale consideration of Rs. 49,88,000/-. Debt Recovery Tribunal, Mumbai has accordingly passed an order and registered deed of conveyance was executed by the Bank of India as a financial institution in favour of the applicant on 06.11.2004 The name of the applicant was mutated in the revenue record as observed hereinabove by the Mamlatdar. However, the higher authorities have set aside the said order and therefore applicant was compelled to file the petition before this Court. 22. It is further transpired from the record that the State Government by its communication dated 30.12.2015 informed the Collector, Porbandar to take 50% of the sale consideration towards the premium from the applicant and as per the Government policy after the amount of premium is paid, the entry be certified in favour of the applicant in the revenue record. Accordingly, the Collector by his communication dated 09.01.2006 addressed to the applicant informed it to pay 50% of the sale consideration i.e. Rs. 24,94,000/- by way of premium and accordingly the applicant has paid the said amount of Rs. 24,94,000/- by way of premium. The copy of the challan is also produced on record. 23. Thus, the issue before the learned Single Judge was of mutation of entry in favour of the applicant. Accordingly, learned Single Judge gave the aforesaid directions. The Letters Patent Appeal filed by the opponents herein was dismissed and same is confirmed up to the Supreme Court. Thus, we are of the opinion that it is not open for the opponents now to contend in the review application filed by the applicant that the land in question was given to the applicant at a throwaway price. However, it is open for the opponents herein to pursue the appeal filed before the Debt Recovery Appellate Tribunal, Mumbai which is still at the stage of condonation of delay. 24. In the decision rendered by the Hon'ble Supreme Court in the case of Suraj Bhan (supra), the Hon'ble Supreme Court has observed in para 7, 8 and 9 as under: “7. We have heard learned counsel for the parties. We have also perused the relevant record. 24. In the decision rendered by the Hon'ble Supreme Court in the case of Suraj Bhan (supra), the Hon'ble Supreme Court has observed in para 7, 8 and 9 as under: “7. We have heard learned counsel for the parties. We have also perused the relevant record. From the record, it is clear that the main question relates to genuineness or otherwise of Will dated April 14, 1989 said to have been executed by Ratni Devi in favour of respondent No. 5. The validity and genuineness of the Will can only be decided by a competent Civil Court. A suit had already been instituted in a Civil Court and though it was dismissed, the order is subject matter of appeal pending in the appellate court. It is, therefore, neither desirable nor advisable to express any opinion on that question and as and when the matter will come up for hearing, it will be decided on its own merits by the High Court where it is pending. 8. So far as mutation is concerned, it clear that entry has been made and mutation has been effected in Revenue Records by Tehsildar on the basis of an application made by respondent No. 5 herein and his name has been entered in Record of Rights on the basis of the Will said to have been executed by Ratni Devi. In our opinion, therefore, it cannot be said that by entering the name of respondent No. 5 in Revenue Records, any illegality had been committed by Tehsildar. It is true that no notice was issued to the appellants but the Tehsildar had taken the action on the basis of Will said to have been executed by deceased Ratni Devi in favour of respondent No. 5. The said order has been/confirmed by the Collector as also by Financial Commissioner. When the grievance was made against the said action by filing a Writ Petition, the High Court also confirmed all the orders passed by Revenue Authorities under the Act. We see no infirmity so far as that part of the order is concerned. 9. There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. We see no infirmity so far as that part of the order is concerned. 9. There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only ‘fiscal purpose’ i.e. payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court (vide Jattu Ram v. Hakam Singh, AIR 1994 SC 1653 ). As already noted earlier, Civil Proceedings in regard to genuineness of Will are pending with High Court of Delhi. In the circumstances, we see no reason to interfere with the order passed by the High Court in the writ petition. 25. Thus, in the facts and circumstances as discussed hereinabove, if the observations made in para 6 of the judgment and order dated 25.04.2014 passed in Letters Patent Appeal No. 369 of 2014 are seen, we are of the opinion that there is an error apparent on the face of the record because the Division Bench has not entertained the appeal and it is observed in other paragraphs also that the subject matter will be governed by the outcome of the appeal pending before the Appellate Tribunal. Thus, when there is an error apparent on the face of the record, this Court is having ample power to correct the same while exercising the review jurisdiction. We are conscious about the scope of review jurisdiction which is to be entertained by this Court and the provisions of Order 47 Rule 1 of Code of Civil Procedure. However, as discussed hereinabove, when there is an error apparent on the face of the record, we are inclined to correct the same. There is no dispute with regard to the proposition of law laid down by the Hon'ble Supreme Court in the case of Bagirathi Ammal (supra). However, as observed hereinabove, in the facts of the present case the said decision would not render any assistance to the opponents. 26. There is no dispute with regard to the proposition of law laid down by the Hon'ble Supreme Court in the case of Bagirathi Ammal (supra). However, as observed hereinabove, in the facts of the present case the said decision would not render any assistance to the opponents. 26. In view of the aforesaid discussion, paragraph 6 of the judgment and order dated 25.04.2014 passed in Letters Patent Appeal No. 369 of 2014 stands deleted. The judgment and order dated 25.04.2014 passed in Letters Patent Appeal No. 369 of 2014 is reviewed to the aforesaid extent. Application is accordingly allowed.