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2020 DIGILAW 43 (GUJ)

Nikulbhai Chhotabhai Patel v. State of Gujarat

2020-01-09

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : 1. Present Letters Patent Appeal is filed by the appellants-original petitioners under Clause 15 of the Letters Patent, challenging the order passed by the learned Single Judge dated 4.9.2019 passed in Special Civil Application No. 4568 of 2017. 2. The appellants-original petitioners have preferred the Special Civil Application under Article 226 of the Constitution of India on the premise that they have purchased the land bearing Survey No. 2060 admeasuring 0 Hector, 22 Are and 26 sq. mtrs. situated in village Bakrol, Taluka and District-Anand through a registered sale transaction, for which execution took place on 5.9.2009 from respondent Nos. 5 to 9, a portion being undivided share in the said Survey Number. This registered sale transaction has been mutated in the revenue record in the form of Entry No. 31667 and after realizing the same, the private respondents raised an objection, as a result of which Dispute Case No. 271 of 2009 was registered before the Mamlatdar. After hearing the parties, said Entry came to be cancelled by an order dated 8.4.2010 mainly on the premise that the land in question is a new tenure land, for which no prior permission was sought from the competent authority before entering into transaction and further, the requisite amount of premium has also not been paid. As a result of this, since the transaction was not found in accordance with law, the Entry came to be cancelled. 3. This order passed by the Mamlatdar cancelling the Entry was assailed by the appellants herein by preferring an appeal before the Deputy Collector, Anand being RTS Appeal No. 58 of 2012 which appeal came to be dismissed. As a result of which, Revision Application was filed before the Collector, Anand which also came to be dismissed which led the appellants herein to approach the Special Secretary, Revenue Department (Appeals) by way of Revision Application under Rule 108(6)(A) of the Gujarat Land Revenue Rules. Said proceedings have also been terminated by an order dated 9.9.2016. As a result of which, the appellants herein brought the writ petition before the learned Single Judge, who, after hearing the parties at length, was pleased to dismiss the same by an order dated 4.9.2019, which is made the subject matter of present Letters Patent Appeal. 4. Said proceedings have also been terminated by an order dated 9.9.2016. As a result of which, the appellants herein brought the writ petition before the learned Single Judge, who, after hearing the parties at length, was pleased to dismiss the same by an order dated 4.9.2019, which is made the subject matter of present Letters Patent Appeal. 4. Shri H.M. Parikh, learned Senior Counsel, assisted by Shri Rashesh Parikh, learned Counsel represent the appellants has vehemently contended that the appellants have purchased the land through the registered sale transaction and as such, moment the registered transaction is taking place, it is incumbent on the part of revenue authorities to mutate the entry. It has further been submitted that it was categorically submitted that they are ready and willing to pay the premium of the land in question and as such, so long as an application which is said to have been presented for payment of premium is not decided, the revenue authorities ought not to have cancelled the entries. Learned Senior Counsel has further submitted that the learned Single Judge has not appreciated this stand and instead, has confirmed the orders which have been passed by the authorities below. The view taken by the learned Single Judge is too technical in nature as per the submission of learned Senior Counsel, as a result of this the error which has been committed deserves to be corrected. 4.1 Shri Parikh has further submitted that when the appellants are ready and willing to pay the premium, it was obligatory on the part of respondent authorities to consider the said request and instead, all the authorities below have chosen not to accept the submission and that fact has not been appreciated in its true perspective by the learned Single Judge, as a result of which the order in question deserves to be corrected. Shri Parikh has submitted that even today also, the appellants are ready and willing to pay the premium. Accordingly, appropriate orders be passed to overcome such technicalities. By submitting this, Shri Parikh has requested that the relief prayed for in the writ petition deserves to be granted. No other submissions have been made. 5. Shri Parikh has submitted that even today also, the appellants are ready and willing to pay the premium. Accordingly, appropriate orders be passed to overcome such technicalities. By submitting this, Shri Parikh has requested that the relief prayed for in the writ petition deserves to be granted. No other submissions have been made. 5. Having heard the learned Senior Counsel for the appellants, having considered the order passed by the learned Single Judge and having gone through the material placed before us, we have at a first glance found that while passing the impugned order, the learned Single Judge has adequately granted an appropriate opportunity to the appellants and has passed a reasoned order after considering even the submission with regard to an issue related to premium. Undisputedly, we have seen that prior to the transaction in question, neither any permission is taken nor any premium is paid which aspect has been properly dealt with by the learned Single Judge, in our considered opinion. 6. Further, on perusal of the order passed by the learned Single Judge as well as from the proceedings independently, it appears that the application was also in doubt whether the same was submitted actually or not and apart from that, even the competent authority has also not been joined in the proceedings. The learned Single Judge has also clearly observed in the order that Mamlatdar and ALT has not been joined as a party respondent and as such, the submission of the learned Senior Counsel is not possible to be accepted and apart from that, regarding the submission about readiness and willingness to pay the premium, the scope of the petition cannot be enlarged as the same is directed against the order passed by the authorities below and furthermore, there seem to be no relief in the context on which the learned Senior Counsel has emphasized. That being the position, we also see no reason to interfere with the order passed by the learned Single Judge. 7. Apart from this, from the bare reading of the order, it appears that all the authorities below have concurrently held against the appellants and as such, in the absence of any other distinguishing circumstance or material, it was not open for the Court to exercise the extraordinary jurisdiction to substitute the findings. 7. Apart from this, from the bare reading of the order, it appears that all the authorities below have concurrently held against the appellants and as such, in the absence of any other distinguishing circumstance or material, it was not open for the Court to exercise the extraordinary jurisdiction to substitute the findings. Nonetheless, to maintain the interest of both the sides and to see that since the appellants have purchased the land in question through registered sale transaction, a specific liberty has been reserved to pursue the application filed by the appellants for payment of premium. As a result of this, no prejudicial order is passed against the appellants even on that issue. The relevant observations contained in the order passed by the learned Single Judge while disposing of the petition are reproduced hereinafter: “6. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it is revealed that the petitioners have purchased the land in question by way of registered Sale-Deed. However, it is not in dispute that the land in question is a restricted tenure land and before the Sale-Deed was executed in favour of the petitioners, prior permission of the competent authority was not obtained and no premium for the land in question as per the Government Policy was paid by the petitioners. Thus, the entry mutated in favour of the petitioners was rightly cancelled by the Mamlatdar and the said order of the Mamlatdar was confirmed upto the SSRD. This Court has gone through the reasoning recorded by the respondent authorities while not entertaining the request of the petitioners and no error is committed by the respondent authorities while rejecting the request of the petitioners. The contention is raised by the learned Senior Advocate for the petitioners that though the petitioners have submitted an application in the year 2012, pointing out that the petitioners are ready and willing to pay the premium as per the Government Resolutions, the said application is till date not decided. However, it is required to be noted that the so-called application is not annexed by the petitioners along with the petition. Learned Senior Advocate has referred the notice issued under Section 84C of the Tenancy Act by the Mamlatdar and ALT. Copy of the said notice is placed on record at Page-51 of the compilation. However, it is required to be noted that the so-called application is not annexed by the petitioners along with the petition. Learned Senior Advocate has referred the notice issued under Section 84C of the Tenancy Act by the Mamlatdar and ALT. Copy of the said notice is placed on record at Page-51 of the compilation. The grievance of the petitioners is that the said request of the petitioners is till date not decided by the respondent authorities. However, it is to be noted that the petitioners have not joined the Mamlatdar and ALT as party respondent in the present petition. No prayer is sought by the petitioners in the present petition to the effect that appropriate direction be issued to the concerned authority i.e. the Mamlatdar and ALT to decide the request of the petitioners. In absence of the said relief, the request of the petitioners cannot be entertained in the present petition. However, liberty is reserved to the petitioners to pursue the application filed by them before the concerned authority for the payment of the premium in respect of the land in question. However, on that ground, the contention raised by the learned Senior Advocate for the petitioners with regard to mutation of entry in the revenue record on the basis of the Sale-Deed executed in favour of the petitioners, cannot be entertained. Accordingly, the petition is dismissed, with the aforesaid liberty. Notice is discharged.” 8. In view of aforesaid reasons which are assigned in specific terms, the order passed by the learned Single Judge does not call for any interference and additionally, we are also of the opinion that this is a Letters Patent Appeal where the scope is well propounded by the Apex Court in a decision in case of Management of Narendra and Company Private Limited vs. Workmen of Narendra and Company, (2016) 3 SCC 340 . So, applying the same also, no case is made out by the appellants before us. 9. In view of above discussion and in view of the fact that no additional distinguishable circumstance being pointed out by the learned Senior Counsel for the appellants, we are not inclined to accept the appeal as found to be meritless. Accordingly, present Letters Patent Appeal stands dismissed with no order as to costs. 10. In view of the order passed in main matter, Civil Application does not survive and stands disposed of accordingly.