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2023 DIGILAW 144 (GUJ)

Kantibhai Mangalbhai Patel v. State Of Gujarat

2023-01-17

A.S.SUPEHIA

body2023
JUDGMENT : 1. RULE. Learned advocates appear and waive service of notice of Rule on behalf of the respective respondents. 2. The present writ petition has been filed for quashing and setting aside the order dated 03.04.2019 passed by the Special Secretary, Revenue Department (Appeals) (for short “the SSRD”), order dated 12.06.2018 passed by the Deputy Collector, Daskroi Prant, Ahemdabad in Remand Case No.3 of 2017. A further prayer is made to cancel the Entry No.5279 dated 28.03.2012 mutated in the revenue record. 3. Brief facts leading to filing of the present petition are as under : - 3.1 It is the case of the petitioner that land bearing Block Nos.996 and 1001 situated at Mouje Kubadthal village, Taluka Daskroi, District Ahmedabad are the land in question and the same are disputed and is the ancestral property of the petitioners. 3.2 The petitioners and the respondent No.4 have executed a Registered Sale deed of Rs.14,000/- for the land in question vide Registration No.2206 on 22.07.1998 for the total sale consideration of Rs.1,40,000/-. The petitioners have alleged that against the aforesaid amount, only Rs.14,000/- was paid by the respondent No.4 and he promised to give an amount of Rs.1,26,000/- but failed to pay the same till date. 3.3 It appears that the respondent No.4 filed an application for entering his name in the revenue record on the basis of the registered sale deed and the name of the respondent No.4 was mutated in the revenue record on 06.07.1998 and a tentative Entry No.3652 was mutated on 13.08.1998 in favour of the respondent No.4 on the basis of the sale deed. 3.4 It is the case of the petitioners that petitioner Nos.7 and 8 filed application bearing RTS Case No.54 of 2006 raising objection against Entry No.3652 before the Mamlatdar, Daskaroi, however the same came to be rejected by order dated 30.10.2006, despite settlement between the parties. It appears that the respondent No.4 filed an application again for entering name in the revenue records on the basis of the said registered sale deed and accordingly, on 13.08.2010, entry No.4924 was mutated giving effect thereof, however the same was not certified on the ground that the Power of Attorney of the petitioner Nos.7 and 8 was not produced and there was an entry with regard to the breach of the Prevention of Fragmentation and Consolidation of Holdings Act, (for short, “Fragmentation Act”). It appears that thereafter, the respondent No.4 produced the Power of Attorney and other documents and Entry No.4984 was mutated on the basis of the sale deed but the same was not certified as there was an entry of fragment. 3.5 The petitioners thereafter instituted Regular Civil Suit No.60 of 2013 challenging the sale deed dated 22.07.1998, which was dismissed for default in the year 2018, however subsequently the said suit is restored. 3.6 It is pertinent to note that Entry No.5279 was certified on 28.03.2012 recording the name of respondent No.4 and the petitioners challenged the certification of Entry No.5279 before the respondent No.3-Deputy Collector, who cancelled Entry No.5279 in RTS/Appeal No.98 of 2014. 3.7 Being aggrieved, respondent No.4 challenged the order of the respondent No.3 before the respondent No.2-District Collector, Ahmedabad by filing LB/Revision Application No.340 of 2016, who allowed the said revision application vide order dated 30.10.2017 by quashing and setting aside the order dated 01.03.2016 passed by the respondent No.3 and a further direction was issued to the respondent No.3 to verify whether there was any breach of the Fragmentation Act or not. Pursuant to the direction issued by the Collector, the respondent No.3 initiated proceedings being Remand Case No.3 of 2017 under Section 9 of the Fragmentation Act. By the order dated 12.06.2018, the respondent No.3 has held that there was no breach of the provisions of the Fragmentation Act and hence, the said notice under Section 9 of the Fragmentation Act was withdrawn and thereby confirmed Entry No.5279 dated 28.03.2012. 3.8 The petitioners being aggrieved by the said order passed by the respondent No.3 challenged the same before the respondent No.1 under Section 35 of the Fragmentation Act, which was dismissed by the respondent No.1 on 03.04.2019, which is subject matter of challenge before this Court. 4. Learned advocate Mr.Atit B. Tahkore, has submitted that the impugned orders are required to be quashed and set aside since there was procedural defects made by the revenue authorities by ignoring the earlier rejection of entries thrice i.e. Entry No.3652 dated 13.08.1998, Entry No.4924 dated 13.08.2010 and Entry No.4984 dated 16.12.2010. It is submitted that Entry No.5279 could not have been certified since the veracity of the sale deed is still in question in the civil suit. It is submitted that Entry No.5279 could not have been certified since the veracity of the sale deed is still in question in the civil suit. It is further submitted that the notice contemplated under Section 135-D of the Gujarat Land Revenue Code (“for short “the Code”) was not issued to the petitioners and hence, such entries could not have been certified after delay of 14 years. Learned advocate Mr.Thakore, has also placed reliance on the Circular dated 17.02.2014 issued by the State of Gujarat, Revenue Department in his favour. He has also forwarded an endorsement of Entry No.5279 in which, it is mentioned that the notice under Section 135-D of the Code has been served personally by the Talati, however it is asserted by him that no such notice has been received by the petitioners. The said documents are ordered to be taken on record. Thus, it is submitted that the impugned orders may be set aside and Entry No.5279 may also be set aside. 5. Per contra, learned AGP Mr.Raval, appearing for the respondent authorities have submitted that in fact, the endorsement, while certifying Entry No.5279, reflects that the notice under Section 135-D of the Code, was already served to the petitioners by the Talati and if he is disputing the same, he can raise such objection in the civil suit, which is already instituted by the petitioners seeking cancellation of the same. Learned Assistant Government Pleader has further submitted that the impugned orders do not require any interference since the authorities below have specifically held that such notice under Section 135-D of the Code is already issued and received by the petitioners and accordingly, Entry No.5279 is certified in the revenue records. It is submitted by the learned AGP that the respondent authorities as well as the SSRD has precisely observed that since the Civil Suit is already pending between the parties, the petitioners can always take such contentions in the pending civil suit. Thus, it is urged that the petition may not be entertained. 6. Learned advocate Mr.Puj, appearing for the private respondent No.4, while opposing the writ petition, has submitted that the petitioners have no locus to challenge the impugned orders after pocketing the money from him. Thus, it is urged that the petition may not be entertained. 6. Learned advocate Mr.Puj, appearing for the private respondent No.4, while opposing the writ petition, has submitted that the petitioners have no locus to challenge the impugned orders after pocketing the money from him. It is submitted that the petitioners are the parties to the said transaction and they cannot be allowed to challenge the transaction being in violation of the Fragmentation Act, after pocketing the sale transaction way back in the year 1998. It is submitted that at no point of time, they have raised objection against the certification of the entries and none of the previous orders were passed at the instance of the petitioners, however the entries were not certified due to the technical grounds or not providing the documents on time and later on, when all the documents were supplied by the respondent No.4, Entry No.5279 was precisely mutated. In support of his submissions, learned advocate Mr.Puj, has placed reliance on the judgment in the case of Kalidas Motiram Patel Vs. Makibai Rustomji Vimadalal 1977 G.L.R. 910 as well as in the case of Geetaben Ishwarbhai and others Vs. State of Gujarat passed in Special Civil Application No.8115 of 2020 decided on 12.10.2020. Thus, it is submitted that it is not open for the petitioners to challenge the proceedings on the ground that the sale deed was in violation of the Fragmentation Act, after a period of 15 years. 7. I have heard the learned advocates appearing for the respective parties. 8. The facts, which are not in dispute and established from the pleadings are that the petitioners have sold the land in question to the respondent No.4 vide a registered sale deed dated 22.07.1998. It is the case of the petitioners that the respondent No.4, though promised to give the entire sale consideration of Rs.1,40,000/-, the sale deed is executed only by paying an amount of Rs.14,000/-. It is also not in dispute that the petitioners have instituted Regular Civil Suit No.60 of 2013 before the Court of Principal Civil Judge, Ahmedabad for cancellation of the sale deed dated 22.07.1998 and the same is still pending. The petitioners have alleged that the sale deed was in violation of the Fragmentation Act and the respondent authorities could not have certified Entry No.5279, which was entered on 28.03.2010. The petitioners have alleged that the sale deed was in violation of the Fragmentation Act and the respondent authorities could not have certified Entry No.5279, which was entered on 28.03.2010. It is also the case of the petitioners that Entry No.5279 should not have been mutated and certified, since the same is in violation of the provisions of the Fragmentation Act. It is also not in dispute that having pocketed the money in the year 1998, may be a part consideration, the petitioners are raising such objections and objecting the certification of Entry No.5279. 9. The aspect, which is required to be noticed is that the proceedings are initiated by the private parties, after pocketing the sale consideration by alleging that the sale was in violation of the statute. In the case of Smt. Ratnaprabhabai d/o. Hirojirao Naranrao Mane vs. M/s.Tulsidas V. Patel and Ors., 1982 (2) G.L.R. 213 , this Court has held thus : - ‘XXX…..it is pertinent to note that the State of Gujarat has not challenged the order of the Manlatdar by which the Mamlatdar had refused to exercise suo motu powers under section 84C. The State would have been the proper party which could have felt aggrieved if at all by the order of the Mamlatdar. Under the scheme of section 84C (1) and (2), if a transaction pertaining to any agricultural land is found to be invalid and if the patties to the proceedings are not willing to restore status quo ante, the — concerned lands would vest in the State Government. Mr.S.R. Shah learned advocate appearing for respondents Nos. 1 and 3 made it clear that these respondents are not willing to get status quo ante restored so., far as the lands in question are concerned. In such an eventuality, the only order which could have followed would have been the order of ‘the Mamlatdar vesting the lands in the State. Such an order would never have benefited the petitioner in the least. The State which could have got these lands vested in it by any effective exercise of suo motu powers by the Mamlatdar under séc. 84C did not think it proper to challenge his order refusing to take such action. Such an order would never have benefited the petitioner in the least. The State which could have got these lands vested in it by any effective exercise of suo motu powers by the Mamlatdar under séc. 84C did not think it proper to challenge his order refusing to take such action. In these circumstances, it is difficult to appreciate how the petitioner-original vendor of the lands felt aggrieved by the decision of the Mamlatdar who had refused to set aside pétitioner’s sale transaction of 1962 in favour of respondent No. 1. The Assistant Collector, as a court of appeal, was justified when he took the view that the petitioner’s appeal itself before the appellate authority under the Tenancy Act was not maintainable. This is the additional reason why no useful purpose can be served by remanding these proceedings for a fresh decision at the instance of the petitioner. It appears that the petitioner having pocketed Rs. 1,00,060/- years back in 1962 is. trying to catch at a straw and is practically indulging in the policy of dog in the manger by seeing that the banging sword of the present litigation lingers on so that at sometime respondents Nos.1 and 3 may come round and may give some. added financial advantage to the petitioner by way of bargain and if the present proceedings are kept pending, such oblique intention of the petitioner may get fructified. The court obviously cannot be a party to such a design. When the petitioner is not a legally aggrieved party, it is impossible to give her any relief in the present proceedings under Article 227 of the Constitution by restoring these proceedings to the file of the Tribunal so that the transaction entered into by the petitioner in favour of respondent No. 1 years back in 1962 may once again be brought in the melting pot.” 10. Thus, aforenoted observations of this Court enunciate that having pocketed the money, the vendor of the land in question has no locus to challenge the entry of sale, and further it is also held that the Collector, while exercising his power under the RTS proceedings cannot exercise the power under the Fragmentation Act. Thus, the authorities have no power to examine the issue with regard to any violation of the sale being in violation of the Fragmentation Act. 11. Thus, the authorities have no power to examine the issue with regard to any violation of the sale being in violation of the Fragmentation Act. 11. In the case of Rinki Shashikant Gandhi Versus Mamlatdar Vadodara Taluka,, 2012 (2) G.L.R. 1275 the Coordinate Bench, while examining the provisions of Rule 108(5) and 108(6) of the Gujarat Land Revenue Rules, 1972, wherein the proceedings were initiated by the vendor after taking the sale transaction, has held thus: “25. The culmination of the above discussion, in light of the judicial pronouncements and reasons stated hereinabove, leads this court to the following conclusions: The proceedings initiated by the vendor, respondent No.4, after four years of execution of the sale transaction and five years of the registration thereof, suffer from delay, having been instituted after an unreasonably long period of time. As such, the Collector could not have acted upon those proceedings by passing the impugned order. Respondent No.4, being the vendor of the land in question has no locus standi to challenge the entry of sale, in respect of a transaction to which he was a willing party, after pocketing the sale consideration. Under these circumstances, respondent No.4 is not an aggrieved person and cannot be permitted to take undue advantage of his own wrong. The Collector, under sub-rule (6) of Rule 108 is not vested with power to direct forfeiture of the land to the State Government. The direction in the impugned order, to this effect, is beyond the jurisdiction vested in the Collector under Rule 108(6) in R.T.S. Proceedings. The Collector, in exercise of power under Rule 108(6) in RTS proceedings cannot exercise power under the Fragmentation Act, merely by virtue of his position or designation or the fact that he may be acting in different capacities under different enactments. Being a quasi judicial authority, the Collector is bound to exercise power within the limits prescribed by the particular enactment under which he is called upon to adjudicate, and cannot transgress the limits of such statutory power, in a manner that overlaps a different enactment. By passing the impugned order, the Collector has transgressed the scope and ambit of the power conferred by sub-rule (6) of Rule 108 of the Gujarat Land Revenue Rules, 1972 , and has erroneously exercised power under the Fragmentation Act, which is not permissible.” 12. By passing the impugned order, the Collector has transgressed the scope and ambit of the power conferred by sub-rule (6) of Rule 108 of the Gujarat Land Revenue Rules, 1972 , and has erroneously exercised power under the Fragmentation Act, which is not permissible.” 12. It is also contended by the petitioners that the notice under Section 135-D of the Code, are not issued to the petitioners before certifying the entries, however the respondent authorities have categorically observed that such notice was issued personally to the petitioners before mutating the entries. The Court has also perused the relevant entries being Entry No.5279, wherein it is categorically observed that a notice under Section 135-D of the Code (Annexure-H) has been personally given by the Talati to the sellers i.e. the petitioners. Thus, in view of the contrary assertions by the petitioners and the respondent authorities, this Court cannot examine the disputed question of facts and it is always open for the petitioners to point out such facts before the Civil Court in the pending Regular Civil Suit No.60 of 2013, whereby the petitioners have challenged the sale deed dated 22.07.1998. It is also noticed by this Court that the earlier Entries No.3652, 4924 and 4984 were not certified for the technical reasons, which are mentioned in the Village Form No.6 and not on any objection raised by the petitioners. Thus, the petitioners, who have entered into the sale transactions, cannot raise any objection to the entry. As on today, the sale deed is not set aside or cancelled by any authority or Court, hence till the respondent No.4 is the rightful owner of the land, the entry in the revenue record of sale transaction is required to be mutated any certified. 13. In view of the above, the present petition is dismissed. Rule is discharged. There shall be no order as to costs.