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2018 DIGILAW 623 (GUJ)

PRAFULLABA VANRAJSINH JADEJA v. STATE OF GUJARAT

2018-04-17

N.V.ANJARIA

body2018
JUDGMENT AND ORDER : N V Anjaria, J. Heard learned advocate Mr.Mehul Sharad Shah for the petitioner, learned Assistant Government Pleader Mr.Manan Mehta for the respondent State and its authorities, as well as learned advocate Mr.Jayant P. Bhatt for the private respondent Nos.4 to 8. 2. The challenge in this petition is directed against order dated 30th December, 2015 passed in Revision Application No.51 of 2011 by the Secretary, Revenue Department (Appeals), Ahmedabad. Thereby the revisional authority dismissed the Revision Application preferred by the petitioner, consequentially confirmed the order dated 21st September, 2011 of the Collector, Kutch. 3. The dispute dealt with by the revenue authorities was in respect of Mutation Entry No.1512 which was recorded in respect of land bearing Survey No.119 situated at Village Khedai, Taluka Anjar, Kutch. The present petitioner purchased the said land under registered sale deed dated 05th April, 1993 from one Jadeja Pravinsinh Vajesang respondent No.7 herein, pursuant to which transaction, the revenue entry was entered in the name of the petitioner. 3.1 It appears that respondent No.4 Madansinh Mahavirsinh Jadeja objected to the said Entry and preferred appeal before the Deputy Collector in the year 2007 which was allowed by the Deputy Collector on 04th August, 2008 cancelling the Entry in question. A further Revision Application was filed before the Collector against the order of the Deputy Collector which came to be dismissed. Thereafter was filed the Revision Application culminating into the impugned order. 3.2 Outlining further facts which attend the controversy, the original owner of the property was one Vajesang Ishwarji who appeared to have partitioned the land amongst his heirs whereupon Revenue Entry No.1206 was mutated on 24th December, 1986 showing names of the heirs. Agreement was executed between the heirs to divide the property, for which Entry No.1207 was mutated. The land in question along with other parcels of land came to the share of said named Pravinsinh Vajesang respondent No.7 herein. It was on the basis of the ownership rights so derived that said Pravinsinh Vajesang executed registered sale deed in favour of the petitioner on 19th January, 1987. Thus Entry No.1512 which was mutated in the name of the petitioner in 1987, came to be subsequently set aside by the order of the Deputy Collector in the year 2008 in the appeal filed in 2007 and further came to be confirmed upto revisional stage. Thus Entry No.1512 which was mutated in the name of the petitioner in 1987, came to be subsequently set aside by the order of the Deputy Collector in the year 2008 in the appeal filed in 2007 and further came to be confirmed upto revisional stage. 3.3 The objection to the Entry was based on the ground inter alia that Entry was wrongly mutated in favour of the petitioner in asmuch as said Pravinsinh was not entitled to sell the property. It was sought to be contended that the family partition deed dated 07th September, 1986 involved several parcels of land and it was not to be concluded that said Pravinsinh was the person entitled to dispose of the land bearing Survey No.119. It was contended that said Pravinsinh has sold the land to the petitioner without intimating the other co-sharers and that other co-sharers had not released their right in the land, yet transaction of sale was executed which, according to the objector, was void in law. 4. Learned advocate for the petitioner assailed the orders of the revenue authorities by emphasising that there was a long delay in preferring appeal before the Deputy Collector which was filed in 2007 in respect of the Entry mutated in the year 1993. He submitted that uncle of the respondent Mahipatsinh died prior to 2000 and he was aware about the partition deed but at no point of time any objection was raised with regard to the contents thereof or the shares divided thereby. It was further submitted that all the respondents share the common residence in the village, therefore they could be said to have knowledge of the sale of the land in favour of the petitioner. It was harped that despite knowledge of the sale, they whiled away 14 years to prefer appeal before the Deputy Collector. 4.1 On the other hand, learned advocate for the private respondents emphasised that the private respondents are co-parcners in the property and that they have their respective share in the property. It was submitted that since the share was maintained for the respondents in property in question, Mutation Entry was not justified. He also tried to submit notice under Section 135-D of the Bombay Land Revenue Code was not certified upon the heirs. It was submitted that since the share was maintained for the respondents in property in question, Mutation Entry was not justified. He also tried to submit notice under Section 135-D of the Bombay Land Revenue Code was not certified upon the heirs. Learned advocate for the private respondents raised further contention touching on the validity of the sale deed and submitted that when the rights of the private respondents in the property was ignored and therefore interest was duped, the revenue authorities were justified in entertaining the objection and scoringoff Mutation Entry No.1512. 4.2 Learned Assistant Government Pleader supported the impugned order. 5. The aspect that the Mutation Entry No.1512 was entered into the revenue records on 05th April, 1993 but the same was not challenged until the appeal came to be preferred in the year 2007 before the Deputy Collector strikes at the outset. After the execution of sale deed in 1987, time of more than 24 years elapsed, before respondent No.6 objector woke up from slumber to prefer appeal. This delay ought to have been a material factor for the Deputy Collector to be considered to dismiss the appeal. It could be uncontrovertedly submitted by learned advocate for the petitioner that appeal before the Deputy Collector was not even accompanied with delay condonation application. The submission on the count of delay could be countenanced and it could be further countenanced that in any view without separate application to condone the delay in preferring appeal, appeal could not have been entertained by the Deputy Collector in view of law laid down in Darabsha Sorabji v. State of Gujarat, (2005) 2 GLR 1409 . 5.1 In addition to the aspect that the Deputy Collector entertained the appeal after one-and-half decade without delay condonation application being filed, the prolonged delay in preferring appeal is itself a factor which ought to have weighed with the Deputy Collector to dismiss the appeal. Delay of such magnitude could be said to be too unreasonable and gross to be countenanced in law for any authority to accept the plea for relief by an indolent litigant. 5.2 It is well settled that even if law does not prescribe period of limitation for the statutory authority to act to exercise its powers, it has to exercise his powers within reasonable time. 5.2 It is well settled that even if law does not prescribe period of limitation for the statutory authority to act to exercise its powers, it has to exercise his powers within reasonable time. Principle underlying is that law would not permit the settled thing to be unsettled after a long lapse of time. This principle was highlighted in the observation in paragraph 11 by the Supreme Court in Santoshkumar Shivgonda Patil v. Balasaheb Tukaram Shevale, (2009) 9 SCC 352 . Therefore, the challenge to the Entry before the Deputy Collector and further confirmation of the order of the Deputy Collector by the authorities upto the stage of revisional authority was tainted by overlooking material aspect of delay. 5.3 The contention raised on behalf of the private respondents about their share in the property, about implementability of the partition deed, in respect of the execution of the sale deed and its validity, are all a realm of civil rights rivally claimed by the parties. For this kind of adjudication, revenue jurisdiction is not the proper jurisdiction and the parties have to approach civil court seeking appropriate relief. Another eyecatching aspect in this context is that though the private respondent Pravinsinh the objector was claiming his share in the property and was raising objections to the sale deed conveyed in favour of the petitioner, he never approached civil court for all these years to get the registered deed set aside. Be as it may. 5.4 The merits of the case of the petitioner stands cemented with a further fact that the Entry No.1512 was mutated in his favour pursuant to registered sale transaction. In view of the second Proviso to Section 135-C of the Bombay Land Revenue Code, when there is a registered transaction, the designated officer is obliged in law to give effect to registered transaction to mutate the Entry. Therefore, when the Entry No.1512 was mutated in the year 1993 with the backing of registered sale deed of 1987, which was properly recorded in law. Therefore, when the Entry No.1512 was mutated in the year 1993 with the backing of registered sale deed of 1987, which was properly recorded in law. 5.5 The principle that once there is a registered sale deed, Mutation Entry has to be recorded, is well settled by the decisions in Jhaverbhai Savjibhai Patel Thro POA Holder Ashok J. Patel v. Kanchanben Nathubhai Patel, (2005) 3 GLH 657 , Balvantrai Ambaram Patel v. State of Gujarat being Special Civil Application No.5464 of 2014 decided on 08th May, 2014 and Dudhiben Muljibhai Patel v. State of Gujarat being Special Civil Application No.758 of 1997, decided on 26th February, 2016. 6. In light of the above factual and legal position, a clear error could be booked in the orders of the revenue authorities which were extended till the stage of revisional authority impugned in this petition. The authorities concurrently committed a serious error of law rendering their orders liable to be set aside. 7. For all the aforesaid reasons, the petitioner is entitled to succeed in his challenge. The impugned order dated 30th April, 2015 of respondent No.1 revisional authority dismissing the Revision Application No.51 of 2011 as well as order dated 21st September, 2011 passed by the Collector, Kutch which was upheld by the revisional authority, both are hereby set aside.