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2020 DIGILAW 59 (GUJ)

Anilbhai Vinodbhai Raval v. State of Gujarat

2020-01-10

A.S.SUPEHIA

body2020
JUDGMENT : 1.0. Rule. Learned Assistant Government Pleader Mr.Jadeja waives service of notice of Rule on behalf of the respondent-State. Though served, no one appears for the private respondents. 2.0. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing. 3.0. By way of the present writ petition, the petitioner has, inter alia, prayed for the following relief;- (A) xxx xxx xxx (B) Your Lordships may be pleased to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, order direction, by setting aside the order dated 8.3.2016 passed by the Respondent No. 2 in Gujarat Land Revenue Rule, 1972, MVV/HKP/AND-150-2015 and the order dated 15.06.2015 passed by the respondent No. 3 in Gujarat Land Revenue Rules in RTS/SUOMOTU/REVISION No. 76 of 2014 and further be restore the mutation Entry No. 2375 in the revenue records; (C) xxx xxx xxx 4.0. The facts of the present petition are that the petitioner has purchased a land from the respondents No. 4, 6 and 9 being survey/block No. 158, which is in the village Dahemi, Taluka: Borsad, District Anand on 30.01.2009 (the land in question) by way of a registered sale deed. A sale consideration of Rs.2,26,700/- was paid to the seller of the land in question. By way of the registered sale deed, the petitioner has got all rights over the land in question from aforesaid respondents, who sold the land in question to the petitioner. 4.1. It is the case of the petitioner that after a long time, on 27.12.2010, some of the private respondents had given a power of attorney of the land in question to one Rajendrakumar Noormohammad Rathod, resident of Napad Vanta, District Anand without permission and information of the petitioner. Thereafter, on 31.05.2013, some of the private respondents had given consent before the Registrar by stating that the disputed land in question was sold to the petitioner on 30.01.2009 at that time some of the land holders were not present for signature. In the consent terms, they have specifically stated that neither themselves nor other family members are having problem with the sale deed, which was executed on 30.01.2009. 4.2. Thereafter, Entry No. 2375 was mutated in favour of the petitioner on 03.07.2014 by the Circle Officer, Borsad. In the consent terms, they have specifically stated that neither themselves nor other family members are having problem with the sale deed, which was executed on 30.01.2009. 4.2. Thereafter, Entry No. 2375 was mutated in favour of the petitioner on 03.07.2014 by the Circle Officer, Borsad. Some of the private respondents have filed RTS Appeal No. 223 of 2015 before Deputy Collector, Borsad, wherein, they have challenged the entry, which was mutated in favour of the petitioner. In the RTS appeal, they have stated that the disputed land was sold to the petitioner without observing their permission and they were not made aware about the same and they were asked to cancel the entry, which was done in favour of the petitioner by the Circle Officer on 03.07.2014. The Collector, Anand rejected the said entry, which was mutated in favour of the petitioner by the order dated on 15.06.2015 was passed in RTS/suomotu/revision No. 76 of 2014. With this rejection order, the Collector has also vacated the stay, which was granted earlier on 22.12.2014 by saying that the disputed land is a non-agricultural land and there was breach of Section 63 of the Gujarat Tenancy and Agricultural Land Act, 1948. (for short the “Tenancy Act”). 5.0. Learned advocate Mr. Javed Qureshi appearing for the petitioner has submitted that the Collector, Anand, without considering the facts of the case and the documentary evidence on record, has passed the order and set aside the impugned order passed by the Circle Officer by cancelling Entry No. 2375, which was mutated in favour of the present petitioner. He has submitted that the petitioner, thereafter, challenged the order of the Collector dated 15.06.2015 before the Special Secretary, Revenue Department, Ahmedabad (for short the “SSRD”) in Revision Application No. MVV/HKP/AND-150-2015 on the ground that the Collector has no jurisdiction to hold with regard to breach of Section 63 of the Tenancy Act, while exercising the power under Rule 108 (6) of the Gujarat Land Revenue Rules, 1972. (in short the “GLRR”). In support of his submission, learned advocate Mr. Qureshi has placed reliance on the judgment of the Coordinate Bench of this Court in case of Ratilal Maganlal Intwala Since Decd. Through heirs v. Special Secretary (Appeal), reported in (2013) 3 GLR 2520 and in the case of Jayantilal Jethalal Soni v. State of Gujarat and Ors. reported in (2005) 4 GLR 3354 . Qureshi has placed reliance on the judgment of the Coordinate Bench of this Court in case of Ratilal Maganlal Intwala Since Decd. Through heirs v. Special Secretary (Appeal), reported in (2013) 3 GLR 2520 and in the case of Jayantilal Jethalal Soni v. State of Gujarat and Ors. reported in (2005) 4 GLR 3354 . It is thus submitted that the Collector, Anand cannot exercise its jurisdiction under the GLRR for investigating or passing necessary orders of breach under the other enactments. He has submitted that thus, the impugned orders may be set aside in view of the aforesaid decisions. 6.0. Per contra learned Assistant Government Pleader Mr. Jadeja has submitted that the Collector, Anand, has in fact, vide communication dated 09.12.2014 sent a proposal to the Mamlatdar and Krushi Panch, Borsad to investigate breach of the provisions of Section 63 of the Tenancy Act with regard to Entry No. 2375 and after the report was received, necessary order was passed by saying that the disputed land is a non-agricultural land. While placing reliance on the judgment in the case of Jayantilal Soni (supra), it is submitted that as per the law enunciated by this Court, no illegality is found in the impugned orders and hence, the present writ petition may not be entertained. 7.0. I have heard the learned advocates for the respective parties and the impugned orders are also perused by me. 8.0. The District Collector, Anand has rejected Entry No. 2375, which was mutated in favour of the petitioner, on 15.06.2015 on the ground that the same was in violation of the provisions of Section 63 of the Tenancy Act. The aforesaid order was passed in Suo Motu Revision No. 76 of 2014. The revision filed by the petitioner before the SSRD, Ahmedabad was also rejected. The issue emerging is whether the Collector, Anand had any jurisdiction to hold about the breach of Section 63 of the Tenancy Act, while exercising the powers under Rule 108(6) of the GLRR. The aforesaid order was passed in Suo Motu Revision No. 76 of 2014. The revision filed by the petitioner before the SSRD, Ahmedabad was also rejected. The issue emerging is whether the Collector, Anand had any jurisdiction to hold about the breach of Section 63 of the Tenancy Act, while exercising the powers under Rule 108(6) of the GLRR. A perusal of the order dated 08.03.2016 passed by the respondent No. 2 i.e. Special Secretary, Revenue Department, Ahmedabad, the Deputy Collector, Anand reveals that during investigating Entry No. 2375, he sent a proposal vide communication dated 09.12.2014 to the Collector, Anand and by the order dated 15.06.2015, the Collector, Anand set aside Entry No. 2375 under Rule 108(6) of the GLRR and thereafter, ordered the inquiry for violation of Section 63 of the Tenancy Act for violation of the provisions of Section 84 (C) of the Gujarat Land Revenue Code, by issuing discretion to the Mamlatdar and Krushi Panch, Borsad. The approach of the Collector can be said to be illegal and contrary to the view expressed by the Coordinate Bench of this Court in the case of Jayantilal Soni (supra). Hence, without first waiting for the outcome of the inquiry to be completed, the Collector, Anand has set aside Entry No. 2375 and thereafter, has ordered the Mamlatdar as well as the Krushi Panch, Borsad to hold the inquiry under Section 84 (C) of the GLRC. 9.0. At this stage, it would be apposite to refer to the observations made by the Coordinate Bench of this Court in the case of Jayantilal Soni (supra). This Court, while examining the issue, whether the revenue authorities, while exercising the power under the GLRC, can inquire for the breache under the other enactments, has held thus; “8. Therefore, keeping in view of the aforesaid observations made by this Court in the above referred judgment, it appears that it would not be proper to hold that even if there are breaches under other enactment or such transfer is barred under the other enactment, the revenue authorities exercising power under Code could have ignored the same for the purpose of recording the mutation. At the same time, the authorities exercising power under the Code will have to exercise the jurisdiction within the limits of the statutory provisions of the Code. At the same time, the authorities exercising power under the Code will have to exercise the jurisdiction within the limits of the statutory provisions of the Code. Therefore, on reconciling of both the aspects, it appears that in a case where the transfer of a land is made by registered sale deed and if the revenue authority prima facie is of the view that such transfer is either barred under the other enactment or is resulting into a breach of other enactment or is to result into adversely affecting the rights under the other enactment and consequently sale is prohibited, then in that case, the appropriate course for the revenue authority would be to record the entry for registered sale deed with the express observations that the registered sale deed is prima facie in breach of the other enactment and simultaneously refer the matter to the competent authority under the other concerned enactment of which breach is committed and the entry should be made subject to the final decision which may be taken by the competent authority under the other concerned enactment. This Court is inclined to take such view, because the one, who may be a bonafide purchaser or one who is interested to purchase the property would normally rely upon the revenue entry for enquiring into the title and the possession of the property. If the entry is certified on the basis of registered sale deed as it is, without recording for aforesaid qualification or clarification, the resultant effect would be that it will not be made known to the either person interested or to the other party who may act upon the revenue entry that the present transaction may be in breach of the other enactment and consequently it may result into not giving correct picture of the title or possession of the property in question in accordance with law. If the entry, on the basis of the sale deed is not at all effected, with the aforesaid qualification or without aforesaid qualification, it may also conversely mislead the public at large and also to those persons who act upon the revenue record, because there will be no recording of such transactions of registered sale deed which has the effect of conferring the right on property unless it is prohibited by the relevant statute under the other enactment or unless such sale deed is declared as null and void by the competent authority or through the process known to law. Therefore, it cannot be said that the authority exercising power under the Land Revenue Code has absolutely no jurisdiction to even prima facie consider the matter as to whether the breach of the other enactment is committed or not. At the most, it can be said that the authority exercising power under the code has no power to conclude as to whether the breach of the other enactment by the impugned transfer or registered sale deed is made or not. 9. In view of the above, it cannot said that the orders passed by all the authorities on the basis that the Mamlatdar has not inquired into the aforesaid three aspects namely as to whether there is any breach of the provisions of the Prevention of Fragmentation Act or the provisions of Tenancy Act, are absolutely without any basis and the orders can be maintained only to the extent that in case it is found by the Mamlatdar after remand that there are prima facie breach of the other enactment by the transfer in question, the revenue authority exercising power under the Code may refer the matter to the appropriate authority under the other enactment or may relegate the affected party to resort to appropriate proceedings under the other enactment and the entry may be considered subject to the final outcome in the proceedings under the other enactment, as observed hereinabove in earlier paragraphs. 10. In view of the aforesaid discussions and considering the facts and circumstances, I find that the order passed by all the authorities i.e. Dy. 10. In view of the aforesaid discussions and considering the facts and circumstances, I find that the order passed by all the authorities i.e. Dy. Collector, Collector as well as the State Government deserve to be modified by observing that the Mamlatdar shall consider the matter in light of the observations made by this Court hereinabove in this judgment and shall take appropriate decision in accordance with law after giving opportunity of hearing to the petitioners as well as to respondent No.4. The aforesaid exercise shall be undertaken by the Mamlatdar as early as possible preferably within six months from the date of receipt of the order of this Court. Until the decision is rendered by the Mamlatdar, status-quo regarding the revenue record of the land in question shall be maintained.” 10.0. This Court has specifically held that if the revenue authority prima facie is of the view that such transfer is either barred under the other enactments or is resulting into a breach of any other enactment or is to result into adversely affecting the rights under the other enactments and consequently, sale is prohibited, then in that case, the appropriate course for the revenue authority would be to record the entry for registered sale deed with the express observations that the registered sale deed is prima facie in breach of the other enactments and simultaneously refer the matter to the competent authority empowered under the other enactments of which breach is committed and the entry should be made “subject to the final decision” which may be taken by the competent authority under other concerned enactments. Thus, the Collector, should not have directly set aside the entry without referring the matter to the competent authority under any other enactments. The Collector should have waited for the report of the Mamlatdar with regard to the breach of any provisions of Section 63 of Tenancy Act before setting aside the concerned entry. 11.0. Thus, in view of the aforesaid facts and discussion, the impugned order 08.03.2016 passed by the respondent No. 2 in Revision Application No. MVV/HKP/ANAND/150/2015 and the order dated 15.06.2015 passed by the respondent No. 3 in RTS/suomotu/revision No. 76 of 2014 are hereby quashed and set aside. 11.0. Thus, in view of the aforesaid facts and discussion, the impugned order 08.03.2016 passed by the respondent No. 2 in Revision Application No. MVV/HKP/ANAND/150/2015 and the order dated 15.06.2015 passed by the respondent No. 3 in RTS/suomotu/revision No. 76 of 2014 are hereby quashed and set aside. The matter is referred to the concerned Mamlatdar, Borsad, District Anand, who shall consider the entire issue and take appropriate action in accordance with law after affording an opportunity of hearing to the concerned parties and pass appropriate order. The entire exercise shall be undertaken by the Mamlatdar within a period of six (06) months from the date of receipt of the writ of this Court. Until the decision is rendered by the Mamlatdar, status quo regarding the revenue record, shall be maintained by restoring Entry No. 2375. Direct service is permitted.