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2018 DIGILAW 660 (GUJ)

Raichand Kanjibhai Shah v. State of Gujarat

2018-04-30

N.V.ANJARIA

body2018
JUDGMENT : Heard learned advocate Mr. R.C. Kakkad for the petitioner, learned Assistant Government Pleader Ms. Divyangna Jhala for respondent Nos.1, 2 and 3 and learned advocate Mr. Premal Joshi for private respondent No.4. 2. The challenge in this petition is directed against order dated 27th June, 2012 passed by the Additional Secretary, Revenue Secretary (Appeals), dismissing Revision Application No.20 of 2006 preferred by the petitioner, in turn, confirming order dated 29th April, 2006 of the Collector, Jamnagar. 3. The facts are that revenue Mutation Entry No.176 mutating the name of the present petitioner came to be recorded in the revenue records on 25th July, 1987, which was in respect of land bearing Survey No.103 at Village Mota Ambla, Taluka Khambhaliya. The petitioner who stayed since time of forefathers at the said village Mota Ambla, purchased the said land from private respondent No.4 – Khimiben pursuant to registered sale deed dated 03rd October, 1986. Accordingly aforesaid Entry was mutated. 3.1 Tracing further the background facts, it comes out that the land in question in respect of which the aforesaid Entry No.176 was made, originally belonged to one Hirji Narshi Shah in whose favour there stood Mutation Entry No.58. Upon the death of said Hirji Narshi, Mutation Entry No.124 was made on the basis of heir ship wherein the names of said Gulabchand Hirji – the father and said Khimiben Hirji – the daughter, respondent No.4 herein as joint heirs, came to be mutated. The said two persons sold the land by registered sale deed in favour of the petitioner in the year 1986 through their administrator-cum-power of attorney holder. 3.2. It appears that respondent No.4 Khimiben raised objection before the Deputy Collector against the said Entry, upon which the Deputy Collector by order dated 29th October, 1986 cancelled the Entry. The said order was challenged before the Collector by filing Revision Application, but the same was dismissed on 15th July, 1998. Thereafter came to be filed Revision Application and the case was remanded to the Collector. The Collector again rejected the application where after the revisional jurisdiction was again invoked by the petitioner against the order of the Collector dated 29th April, 2006, which culminated into the impugned order of the revisional authority who refused to entertain the Revision Application. Thereafter came to be filed Revision Application and the case was remanded to the Collector. The Collector again rejected the application where after the revisional jurisdiction was again invoked by the petitioner against the order of the Collector dated 29th April, 2006, which culminated into the impugned order of the revisional authority who refused to entertain the Revision Application. 3.3 The objection of private respondent No.4 in respect of the Entry in question was on the count that the sale deed was not authorisedly executed and it being not a valid sale transaction, could not have resulted into the Mutation Entry in the name of the petitioner. It appears that the sale document was executed by one Hansraj Premchand who was administrator and person in possession acted in capacity of power of attorney of Gulabchand Hirji and Khimiben Hirji. The objection of the Khimiben was that said Hansraj did not have right to execute the sale deed and he did not derive any such power from the power of attorney. 4. Learned advocate for the petitioner assailed the impugned order on the ground of delayed conduct of respondent No.4 in objecting the Entry as well as by contending that the revenue authorities acted to mutate the Entry because the petitioner had become owner of the land pursuant to the sale deed executed and registered in his favour. It was further submitted that both the petitioner and private respondent had instituted their respective civil suits before the competent civil court which were pending. It was submitted that when the civil suits were pending, the revenue authorities were not justified in reaching to a conclusion about the legality of the sale transaction. 4.1. On the other hand, learned advocate for the private respondent vehemently contended that the sale was illegally executed, that the power of attorney was made subsequent to the date of sale deed and that the third party administrator had no right to act on behalf of the owners Gulabchand Hirji and Khimiben Hirji to effect the transaction. It was submitted that since the sale itself was void and illegal, no right could flow therefrom for the petitioner and the Mutation Entry was not liable to be made in the records on that basis. It was submitted that since the sale itself was void and illegal, no right could flow therefrom for the petitioner and the Mutation Entry was not liable to be made in the records on that basis. It was submitted that if Mutation Entry is permitted on the basis of the illegal or fraudulent sale, it would give rise to complexify about the ownership rights. 4.2. Learned advocate for the private respondent heavily relied on the observations and order of the Collector, Jamnagar who after terming the sale transaction as nullity, upheld the order of the Deputy Collector to annul Mutation Entry No.176. Learned advocate also sought to press into service decision of this Court in Faruq Davood Bhula v. State of Gujarat [ 2010 (2) GCD 1731 ] to submit that when the transaction could be viewed as fraudulent, the revisional authority rightly confirmed the order of the Collector, as was also done by this Court in that case. 4.3 Learned Assistant Government Pleader also supported the impugned order and submitted that the finding was recorded about the legality of the sale transaction which was based on cogent aspects, and which may not be interfered with by this Court in exercise of writ jurisdiction. 5. From the facts and the submissions made, three aspects come forth. Firstly, that the Mutation Entry No.176 was made on 25th July, 1987 and came to be certified on 21st April, 1988. The objection by respondent No.4 by preferring appeal before the Deputy Collector was raised in the year 1995. Secondly, the basis of the Mutation Entry was registered sale deed dated 03rd October, 1986 executed by their joint owners Gulabchand Hirji and respondent No.4 Khimiben through power of attorney. In the third place, private respondent No.4 as well as said Gulabchand have instituted Special Civil Suit No.25 of 1998 before the court of Civil Judge (S.D.), Khambhaliya on 10th September, 1998, with a prayer to declare as illegal and set aside the sale deed No.1362 dated in question dated 03rd October, 1986. Prior to this suit, the petitioner herein instituted Special Civil Suit No.39 of 1996 against Khimiben Hirji and Gulabchand Hirji on 07th January, 1996 which is for declaration and permanent injunction. Prior to this suit, the petitioner herein instituted Special Civil Suit No.39 of 1996 against Khimiben Hirji and Gulabchand Hirji on 07th January, 1996 which is for declaration and permanent injunction. 5.1 The above undisputed factual aspects manifested from record, makes it evident that the objection to the Entry by respondent No.4 herein was sought to be raised after lapse of more than seven years. No explanation, much less satisfactory explanation, is given for this conduct of delay in objecting to the Entry. The Entry was mutated in the year 1987 and certified in the year 1988 whereas the respondent No.4 approached the Deputy Collector only in 1995. The submission of learned advocate for the petitioner could not be brushed aside lightly that this sole ground ought to have weighed with the Collector and the revisional authority so as not to entertain the objection. 5.2 The weightier ground is that the Mutation Entry No.176 was based on registered transaction and it was sought to be objected by raising dispute as to the validity of the sale deed and right to execute the sale deed. When the Mutation Entry in question was made in the revenue record with the backing of the registered sale transaction, recording thereof was obligatory. It was not to be an error in any view. 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. 5.3 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 ]. 5.3 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. 5.4. 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 135D 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. On behalf of respondent No.4, various contentions were raised in respect of the legality of the sale deed and on the score of the valid execution thereof. Whether the power of attorney had the authority to act on behalf of the vendors, whether the power of attorney was made in subsequent point of time to the date of the deed of sale and whether the share in the property of respondent No.4 vendor was duped, are the all aspects which have to be gone into by leading evidence and the domain for that is with the civil court. The very contentions which are sought to be raised about the legality and validity of the sale deed on the basis of which the Mutation Entry was made, are the pleadings, averments and grounds in the Special Civil Suit No.25 of 1998 instituted by said Gulabchand Hirji and Khimiben Hirji – respondent No.4 herein. 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 has to be observed that any revenue Entry in the revenue records does serve only purpose of having fiscal value. Mutation Entry is reflection of record of the transaction in relation to any property taking place between the parties. The revenue Entries are for maintaining of record in the governmental books in respect of the transactions between the parties where the property rights are involved. They themselves do not reflect anything on the property rights or ownership instances of the parties to the transaction. 6.3 In Gandabhai Dalpabhai Patel v. State of Gujarat [ 2005 (2) GLR 1370 ] the Court observed that Entry in record of rights has only a presumptive value for the purpose of collection of revenue. It was ruled that in RTS proceedings the revisional authority cannot go into the question such as genuineness of power of attorney or right of the power of attorney to execute sale deed. It was ruled that in RTS proceedings the revisional authority cannot go into the question such as genuineness of power of attorney or right of the power of attorney to execute sale deed. In paragraph 8, it was held “the questions in relation to genuineness of Power of Attorney and/or authority, and whether the Power of Attorney holder can execute the sale-deed or not, are the questions which are required to be considered by a Civil Court and not in an R.T.S. Proceeding while mutating necessary entry in the record of rights which is only made for fiscal purpose and which does not confer any right, title or interest in favour of a person in whose favour entry is made.” 6.4 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.176 shall remain subject to outcome of the Special Civil Suit No.25 of 1998 instituted by respondent No.4 against the present petitioner as well as subject to outcome of Special Civil Suit No.39 of 1996 instituted by the petitioner. This observation, clarification and direction that the Mutation Entry shall abide by the outcome of the civil proceedings pending between the parties in the nature of the aforesaid Civil Suits shall continue to operate notwithstanding that the impugned orders herein are to be set aside for the reasons spelt out here-in-above. 7. For the discussion preceded and the reasons recorded hereinabove, however subject to operation of the aforesaid observations and clarification to the limited extent in the context of and in view of the pendency of the Civil Suits, the challenge in this petition succeeds. The impugned order dated 27th June, 2012 passed by the revisional authority – respondent No.1 herein dismissing the Revision Application No.20 of 2006 as well as order dated 29th April, 2006 of the Collector, both are hereby set aside. Resultantly, Mutation Entry No.176 shall continue to figure in the revenue record, however together with the above observations and clarification.