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2018 DIGILAW 659 (GUJ)

NAGJANBHAI ARJANBHAI VADHER v. STATE OF GUJARAT

2018-04-30

N.V.ANJARIA

body2018
JUDGMENT/ORDER : N.V. Anjaria, J. These petitions are cognate as they arise out of the same order. 1.1 Heard learned advocate Mr. Nishant Lalakiya for learned advocate Mr. Saurabh Patel for the petitioners in Special Civil Application No.17769 of 2016, learned advocate Mr. Jigar Rawal for the petitioner in Special Civil Application No.17993 of 2016, learned Assistant Government Pleader Mr. Manan Mehta for the State and its authorities, whereas learned advocate Ms. Kruti Shah for private respondents in both the petitions. 2. What is challenge in the petitions is order dated 15th February, 2016, passed by the Secretary, Revenue Department (Appeals), Ahmedabad, in Revision Application No.76 of 2008. Thereby the revisional authority partially allowed the Revision Application of the private respondents herein, set aside order dated 23rd July, 2008 of the Collector, Surat and remanded the case. 3. The dispute dealt with by the revenue authorities culminating into the revisional proceedings as above, was in respect of Mutation Entries pertaining to land bearing Revenue Survey Nos. 67 and 73 at village Ved, Taluka Surat. This land originally belonged to one Gopaldas Parshottamdas who expired on 04th February, 1971, whereupon names of the heirs of the deceased Gopaldas were entered for which Entry No.893 was mutated. The widow and son of Gopaldas died in the year 1986 and 2002, respectively, which left five heirs (1) Revaben D/o. Gopaldas, (2) Ramaben D/o. Gopaldas, (3) Kunjlataben D/o. Gopaldas, (4) Vimlaben D/o. Gopaldas and (5) Manjulaben D/o. Gopaldas, as the owners of the said land. These five persons executed a Power of Attorney dated 12th March, 2002 in favour of respondent No.12 Thakur Ghanshyam Devani. 3.1 Said respondent No.12 executed a registered Sale Deed in favour of the petitioner of Special Civil Application No.17993 of 2016 Vaghjibhai Ghelabhai Bhagiya dated 21st March, 2003. Mutation Entry Nos.1189 and 1190 came to be made in the revenue records regarding this transaction. 3.2 It appears that the respondents instituted Civil Suit No. 195 of 2003 on 22nd July, 2003 before the competent Court at Surat. In that suit proceedings, interim relief of maintenance of status quo as granted by the Appellate Court is operative and the Civil Suit is pending. The heirs of the original owners respondent No.1 and others objected to the aforesaid entries and started the proceedings before the Mamlatdar by instituting Case No.17 of 2003. The Mamlatdar cancelled the two entries. In that suit proceedings, interim relief of maintenance of status quo as granted by the Appellate Court is operative and the Civil Suit is pending. The heirs of the original owners respondent No.1 and others objected to the aforesaid entries and started the proceedings before the Mamlatdar by instituting Case No.17 of 2003. The Mamlatdar cancelled the two entries. Further appeal was filed before the Deputy Collector, who confirmed the order of the Mamlatdar. The matter was not carried further. 3.3 It appears that the present petitioner again applied before the Mamlatdar for mutation of entry on the basis of the aforesaid registered Sale Deed dated 21st March, 2003. On 02nd April, 2007, the Mamlatdar made Entry Nos.1380 and 1381 in the revenue records, which entries were certified on 07th May, 2007. Again said Ramaben Gopaldas -private respondent raised objection to the said entry. 3.4 The Collector held that Entry Nos.1380 and 1381 were required to be mutated subject to the final outcome of the Civil Suit. The Collector passed such order on 23rd July, 2008. The respondents, however, felt aggrieved by the said order dated 23rd July, 2008 filed Revision Application No.76 of 2008 before the revisional authority which is the order impugned in this petition. 3.5 The petitioner of second Special Civil Application No.17769 of 2016 purchased the land in question from the Power of Attorney-holder of the petitioner of the first petition by virtue of the Sale Deed dated 08th May, 2007, for which Entry No.1389 was mutated. After the Collector upheld the validity of the Revenue Entry Nos.1380 and 1381 above and the Revision Application was filed by the respondents, the petitioner of other petition Nagjanbhai Arjanbhai Vadher made an application before the revisional authority to become a party. It appears that he was permitted to be added as party. He has also challenged the order of the revisional authority passed in Revision Application No.76 of 2008. 4. Learned advocates for the petitioners in the respective petitions submitted that the order of the revisional authority was erroneous inasmuch as, the entries in question could not have been disturbed. It was submitted that all the entries which were recorded to mutate the names of the petitioners were based on registered Sale Deeds by virtue of which the petitioners had become owners of the land. It was submitted that all the entries which were recorded to mutate the names of the petitioners were based on registered Sale Deeds by virtue of which the petitioners had become owners of the land. It was submitted that the Collector rightly viewed the dispute and treated the entries subject to outcome of the civil proceedings. 4.1 Learned Assistant Government Pleader supported the impugned order to submit that the revisional authority was within its powers to remand the case to the Collector. Learned advocate for private respondent No.6.1 to 11 relied on the affidavit-in-reply filed by the said respondents and highlighted the conduct of the parties. She submitted that the entries were got mutated by misrepresenting as if the Civil Suit was finally decided though it was not. It was submitted that looking to the conduct which she termed as not bona fide on the part of the petitioners, they were not entitled to any relief. 5. There is no escape from the fact that Entry Nos.1380 and 1381 as well as Entry No.1389 were entered in the revenue records upon the respective transaction of registered sale. Once there was a registered transaction, error could not be booked on the part of the revenue authorities in mutating the names of the respective owners of the land the vendors. 5.1 It is trite that whenever a registered transaction takes place, it ought to be reflected in form of Mutation Entry. The transaction shall have to be accepted for entry to became part of the revenue records when based on the registered document. It is not only the registered Sale Deed but any registered document that could become basis for validly making the Mutation Entry. This is statutorily contemplated by virtue of Second Proviso to Section 135-C of the Bombay Land Revenue Code, when it says that, any person acquiring a right by virtue of a registered document shall be exempted from the obligation to report to the designated officer. 5.2 The principle that the designated officer is enjoined in law to make the Mutation Entry when the basis shown is a registered sale transaction, is underlined and reiterated in Jhaverbhai Savjibhai Patel through P.O.A. Holder Ashok J. Patel v. Kanchaben Nathubhai Patel, (2005) 3 GLR 2233 . 5.2 The principle that the designated officer is enjoined in law to make the Mutation Entry when the basis shown is a registered sale transaction, is underlined and reiterated in Jhaverbhai Savjibhai Patel through P.O.A. Holder Ashok J. Patel v. Kanchaben Nathubhai Patel, (2005) 3 GLR 2233 . In Balvantrai Ambaram Patel v. State of Gujarat, being Special Civil Application No. 5464 of 2014 decided on 08th May, 2014 this Court in paragraph 6 stated that in all cases of claims for mutation based on a registered document, the competent officer has to be entered the name of the claimant-owner-right holder. The authority cannot insist for observing the requirements of Section 135-D apriori and on that basis declined to enter the name in the revenue records. The designated officer in charge of the said function has no jurisdiction to disregard the legal effect of the registered document, and he cannot be permitted to do so even indirectly. It was emphasised that once the petitioner purchased the land in question by virtue of registered sale deed, he is entitled to have his name mutated in the revenue records. 5.3 In Dudhiben Muljibhai Patel v. State of Gujarat being Special Civil Application No.758 of 1997, decided on 26th February, 2016 the principle of requirement of exercise of powers by the authorities within reasonable time was reiterated, to observe that it is trite principle that an entry in the revenue record has to follow to be mutated when the transaction is by a registered document. It was held that question of following procedure of Section 135-D of the Bombay Land Revenue Code would not arise when a transaction is by a registered deed. Such transaction cannot be disputed by the revenue authority unless the competent civil court annuls the same. 6. Various contentions and objections were raised against the mutation of entries including that the notice under Section 135-D was not given, that the Sale Deed were bogus and illegal and that they were executed by creating the false Power of Attorney. A criminal case was filed and that there are no signatures on the Sale Deed. It was also contended that Civil Suit No.195 of 2003 was pending and it was not finally decided. 6.1 It is not the realm of the revenue authorities to go into the questions of above nature. A criminal case was filed and that there are no signatures on the Sale Deed. It was also contended that Civil Suit No.195 of 2003 was pending and it was not finally decided. 6.1 It is not the realm of the revenue authorities to go into the questions of above nature. The revenue authorities cannot reach to a conclusive finding while dealing with the question of Mutation Entry based on the registered Sale Deed that the registered Sale Deed was invalid or illegal or void. On such grounds, the Mutation Entry, more particularly based on the registered sale transaction, could not have been agitated, objected or annulled. 6.2 It is well-settled principle that revenue entry serves only fiscal purpose. In this case, Civil Suit No.195 of 2003 is pending between the parties, therefore, as far as title related rights and ownership incidents of the parties are concerned, the same will be determined by the Civil Suit. 6.3 In light of the above settled principle about the nature of the revenue entry vis-a-vis the fact of pendency of the Civil Suit challenging the registered Sale Deed obtaining in this case, it goes without saying that Mutation Entry No.1380, 1381 and 1389 shall remain subject to outcome of Civil Suit No.195 of 2003 pending between the parties. This observation, clarification and direction that the Mutation Entries shall abide by the outcome of the civil proceedings pending between the parties in the nature of the aforesaid Civil Suit shall continue to operate notwithstanding that the impugned orders herein are to be set aside for the reasons spelt out hereinabove. 6.4 Since as discussed above, the position of law is clear and well-established with regard to the making of entries on the basis of the registered transaction, the order of the Collector was eminently just, proper and legal when he recognized the registered transaction and accepted the entires on that basis to observe that the same shall stand subject to the outcome of the Civil Suit and shall abide by the result of the civil proceedings. The revisional authority ought to have upheld the order of the Collector. The remand ordered by the revisional authority was a commission of error in law. Since the order of the Collector was legal and required to be sustained and required to be sustained, interference was not called for therein by the revisional authority. 7. The revisional authority ought to have upheld the order of the Collector. The remand ordered by the revisional authority was a commission of error in law. Since the order of the Collector was legal and required to be sustained and required to be sustained, interference was not called for therein by the revisional authority. 7. As a result, the impugned order dated 15th February, 2016, passed by the Secretary, Revenue Department (Appeals), Ahmedabad, in Revision Application No.76 of 2008 is hereby set aside subject to the above observations in the context of pending Civil Suit that the Mutation Entries shall remain subject to outcome of civil proceedings. Both the petitions are allowed in the aforesaid terms.