Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 758 (GUJ)

Ketanbhai Shantibhai Patel v. State of Gujarat

2018-06-18

N.V.ANJARIA

body2018
JUDGMENT : N.V. Anjaria, J. Heard learned advocate Mr. Rohan Shah for the petitioner, learned Assistant Government Pleader Ms. Divyangna Jhala for the respondent - State and its authorities as well as learned advocate Mr. Manan Bhatt for respondent No.3. 2. This petition is directed against order dated 06th February, 2016 passed by the Secretary, Revenue Department (Appeals), Ahmedabad, whereby Revision Application No.57 of 2010 preferred by the petitioner came to be dismissed and order dated 07th August, 2010 of Collector, Surat, was confirmed. 3. The dispute dealt with by the revenue authorities was in respect of Mutation Entry Nos.6216 and 6215. The relevant facts were that the land bearing Block No.889/A at Village Sevani, Taluka Kamrej was in the name of one Vitthalbhai Patel. Said Vitthalbhai executed registered sale deed No.1054 dated 23rd March, 2007 in favour of the present petitioners. In pursuance of this registered transaction, Entry No.6216 was made in the revenue record on 10th May, 2017. Before that, on 08th May, 2007, another Entry No.6215 holding the encumbrance was mutated. 3.1 It appears that Power of Attorney o the said Vitthalbhai gave application dated 26th June, 2007 to object the said Entries, upon which Mamlatdar, Kamrej, treated the Entries as disputed. By order dated 08th January, 2008, Mamlatdar cancelled the said Entries. Thereafter the petitioner preferred Appeal before the Deputy Collector, Olpad, which was transferred to Deputy Collector, Prant Bardoli. The Deputy Collector dismissed the Appeal on 25th August, 2009. Further Appeal No.152 of 2009 before the Collector was also not accepted. The Collector observed that outcome of the civil litigation pending between the parties would be binding to them. 3.2 Thereupon filed Revision Application to challenge the order of the Collector, culminating into the impugned order. 4. Learned advocate for the petitioner assailed the impugned order. He submitted that since the Entry in favour of the petitioner was mutated pursuant to registered sale transaction, all the three authorities committed concurrent error in not approving the Entry. He submitted that by virtue of the registered sale deed, the petitioner became owner and therefore, he was entitled to get his name mutated in the revenue records. He submitted that even civil suit is pending, therefore, unless the other side succeeds in the civil suit; Entry could not have been obliterated from the revenue records. He submitted that by virtue of the registered sale deed, the petitioner became owner and therefore, he was entitled to get his name mutated in the revenue records. He submitted that even civil suit is pending, therefore, unless the other side succeeds in the civil suit; Entry could not have been obliterated from the revenue records. 4.1 On the other hand, learned advocate for respondent No.3 - the objector to the Entry submitted that entire sale transaction was fraudulent in nature. He submitted about the criminal proceedings initiated and the police complaint which was filed. He further submitted that the document of sale was not genuine and was not admitted by them. He also raised question about the legality of power of attorney and further submitted that the consideration had not passed as claimed. Learned Assistant Government Pleader also supported the impugned order. 5. There is no escape from the fact that Entry No.6216 was entered in the revenue records upon the sale transaction of registered deed. 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. The contention raised on behalf of respondent No.3 for objection the Mutation Entry could hardly sustain as they are not relevant in the revenue proceedings. Whether the sale deed was actuated by fraud or whether it is invalid transaction and whether the conveyance of the property is legal or not, are the questions in the nature of civil rights claimed by the parties. These questions could be determined and crystalised only in the civil suit. Whether the sale deed was actuated by fraud or whether it is invalid transaction and whether the conveyance of the property is legal or not, are the questions in the nature of civil rights claimed by the parties. These questions could be determined and crystalised only in the civil suit. It is an admitted position that Regular Civil Suit No.362 of 2007 is pending before the civil court in which the prayer is made for cancellation of sale deed. It is not the realm of the revenue authorities to go into the issues of civil nature such as validity of the sale which took place by registered document. Whether the sale deed was valid or otherwise could not have been the ground to disapprove the Mutation Entry. 6.1 It is well-settled principle that revenue entry serves only fiscal purpose. In this case, Civil Suit No.362 of 2007 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. 6.2 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.6216 shall remain subject to outcome of Civil Suit No.362 of 2007 pending between the parties. 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 Suit shall continue to operate notwithstanding that the impugned orders herein are to be set aside for the reasons spelt out hereinabove. 6.3 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 Entry 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. Thus the submission could be countenanced that concurrent error of law was committed by the revenue authorities upto the revisional authority in not accepting the Mutation Entry based on registered sale deed. 7. Thus the submission could be countenanced that concurrent error of law was committed by the revenue authorities upto the revisional authority in not accepting the Mutation Entry based on registered sale deed. 7. In view of the above discussion, order dated 06th February, 2016 passed by the Secretary, Revenue Department (Appeals), Ahmedabad, dismissing Revision Application No.57 of 2010 is hereby set aside. As a result, Mutation Entry made pursuant to registered sale deed in favour of the petitioner shall continue to figure on record, however the same shall be subject to the outcome of the aforementioned Civil Suit. The petition stands allowed and disposed of in the aforesaid terms. FURTHER ORDER Learned advocate Mr.Manan Bhatt prays for stay of the aforesaid order. In the facts and circumstances of the case and in view of what is held and observed hereinabove, request could not be exceeded to and the same is declined.