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2023 DIGILAW 759 (GUJ)

Manubhai Chhotalal Barot v. State Of Gujarat

2023-06-15

ANIRUDDHA P.MAYEE

body2023
JUDGMENT : (Aniruddha P. Mayee, J.) The present Special Civil Application is filed praying for the following reliefs:- “12(A) The Hon’ble Court be pleased to issue a writ of mandamus/certiorari or writ in the nature of mandamus/ certiorari or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned order dated 03.04.2020 passed by the Respondent No.3 in LAND/R.T.S./DISPUTE CASE No.2/2020 (Annexure-A), in the interest of justice; (B) Pending the hearing and final disposal of this petition the Hon’ble Court be pleased to stay the implementation, operation and execution of the impugned order dated 03.04.2020 passed by the Respondent No.3 in LAND/R.T.S./DISPUTE CASE No.2/2020 (Annexure-A); (C) Pending the hearing and final disposal of this petition the Hon’ble Court be pleased to direct the Respondent No.3 to record and certify the Mutation Entry No.4206 dated 09.01.20 recording the sale of the subject lands in favor of the petitioner by registered sale deed No.42/2020 executed on 09.01.20 by the respondent No.9 trust; (D) The Hon’ble Court be pleased to impose exemplary costs upon Respondent No.3 for having deliberately exceeded in his jurisdiction while passing the impugned order dated 03.04.20; (E) The Hon’ble Court be pleased to direct the respondent no.1 to hold inquiry into the functioning of the respondent no.4 as Mamlatdar of Taluka Saraswati, District Patan and if it is found that the said respondent no.4 has committed any misconduct then be pleased to hold departmental inquiry against him and be further pleased to direct the respondent no.1 to place a report in this regard before this Hon’ble Court.” 2. The facts in the nutshell are as follows:- 2.1 That since 1953-54, the lands bearing Survey Nos.1118 (Old Survey No.159) measuring 2,030 sq. mts., Survey No.1119 (Old Survey No.159) measuring 10,313 sq. mts., Survey No.1120 (Old Survey No.372) measuring 10,892 sq. mts. and Survey No.1121 (Old Survey No.372) measuring 1,743 sq. mts. of village: Jangral, Taluka Saraswati, District Patan [“the said lands” for short] were owned by Shree Paleshwar Mahadev Sansthan Jangral Trust [“ the Trust” for short]. That the said lands were also recorded in the PTR of the said Trust. That on 3.12.1964, vide mutation entry No.923, the name of the respondent No.9 Trust came to be recorded in the revenue records as the owner and occupier of the said lands. That the said lands were also recorded in the PTR of the said Trust. That on 3.12.1964, vide mutation entry No.923, the name of the respondent No.9 Trust came to be recorded in the revenue records as the owner and occupier of the said lands. That since then in the revenue records, the said lands have been continuously shown to be owned and occupied by the said Trust. That in the year 2019, since the respondent No.9 Trust was in financial need for the maintenance of the Paleshwar Mahadev Temple, it filed an application being Application No.36/12/2019 before the learned Joint Charity Commissioner, Mahesana seeking permission under Section 36 of the Gujarat Public Charity Trust Act, 1950 [“ the Act” for short] for selling the said lands. That the learned Joint Charity Commissioner gave permission for selling the said lands at an upset price which was determined at Rs.42,00,000/-. That a public notice was also published inviting the bids for sale of the said lands. That the respondent No.6 in the capacity as an erstwhile owner of the said lands filed objections against the application for permission to sell the lands before the learned Joint Charity Commissioner, Mahesana. That on 24.10.2019, public auction came to be held in respect of the said lands and the petitioner herein gave the highest bid of Rs.45,00,000/-. That on 27.10.2019, the trustees of the respondent No.9 Trust resolved to accept the highest offer of the petitioner subject to the orders of the learned Joint Charity Commissioner. That by order dated 6.12.2019, the learned Joint Charity Commissioner accepted the offer of the petitioner and rejected the objections raised by the respondent No.6 herein. Accordingly, the learned Joint Charity Commissioner passed an order under Section 36 of the Act and permitted the respondent No.9 Trust to sell the said lands. That on 9.1.2020, the petitioner paid the entire sum of Rs.45,00,000/- to the respondent Trust and the said Trust executed a sale deed being registered document No.42 of 2020 before the concerned Sub-Registrar, Patan. Accordingly, in terms of the said sale transaction, pencil mutation entry No.4206 came to be recorded in the village form No.6 including the name of the petitioner as a purchaser and the name of the Trust as a seller. That the respondent Nos.6 to 8 again filed their objections against the said mutation entry and opposed the certification of the same. That the respondent Nos.6 to 8 again filed their objections against the said mutation entry and opposed the certification of the same. That the petitioner herein filed his reply against the said objections before the Mamlatdar, Saraswati in respect of mutation entry No.4206. That the respondent Trust also filed its reply against the objections by the respondent Nos.6 to 8 before the Mamlatdar. That by order dated 3.4.2020 the Mamlatdar, Saraswati passed an order in Dispute Case No.2/2020 allowing the objections filed by the respondent Nos.6 to 8 and cancelled the mutation entry No.4206 dated 9.1.2020. 2.2 In the meantime, the respondent No.6 also filed an appeal No.AA/02/2020 before the Gujarat Revenue Tribunal being aggrieved by the order of the learned Joint Charity Commissioner dated 6.12.2019 permitting the respondent Trust to sell its land. That the learned Gujarat Revenue Tribunal vide order dated 14.10.2022 was pleased to reject the application for stay in the said appeal. 2.3 That the petitioner herein has filed the present petition challenging the order dated 3.4.2020 passed by the Mamlatdar, Saraswati cancelling the mutation entry in his favour. 2.4 That in the meantime, the respondent Nos.6 to 8 also filed Special Civil Suit No.2 of 2020 in the Court of learned Principal Senior Civil Judge, Patan for claiming ownership of the said lands and for setting aside the sale deed executed in favour of the petitioner. In the said suit, the petitioner herein had preferred an application under Order VII Rule 11 of Civil Procedure Code for rejection of the plaint. That vide order dated 11.11.2021, the learned Principal Senior Civil Judge, Patan was pleased to reject the plaint of the respondent No.6. That against the said order, the respondent No.6 has preferred an appeal before the District Court, Patan and the same is pending without any interim relief in favour of the respondent No.6 herein. 3. Mr. P.K.Jani, learned Senior Counsel appearing for the petitioner submits that in the present case, the petitioner is the purchaser of the lands owned by the respondent No.9 Trust after due procedure being followed by the respondent Trust before the learned Charity Commissioner under the Act. He submits that the respondent Nos.6 to 8 had filed their objections to such sale before the learned Charity Commissioner and they were unsuccessful. He submits that the respondent Nos.6 to 8 had filed their objections to such sale before the learned Charity Commissioner and they were unsuccessful. Pursuant thereto, the said respondents also preferred an appeal which is pending adjudication before the learned Gujarat Revenue Tribunal. He further submits that the lands are owned by the respondent No.9 Trust since the year 1964 vide mutation entry No.923. He submits that the said lands have been continuously shown to be owned and occupied by the said Trust. He submits that since the respondent Trust was in need of money, they had made an application before the learned Joint Charity Commissioner for sale of the said lands in its possession and the petitioner is the successful purchaser of the same by way of public auction. He submits that thereafter the registered sale deed came to be executed before the Sub-Registrar, Patan. He submits that being a registered sale document, the Mamlatdar could not have refused the certification of the mutation entry No.4206. He submits that the respondent Nos.6 to 8 were challenging the sale as well as the mutation entry, however, they have no locus in the matter as the said lands are owned and occupied by the respondent No.9 Trust. He further submits that the respondent Nos.6 to 8 being unsuccessful in challenging the order passed by the learned Joint Charity Commissioner, filed the suit for claiming ownership of the lands in question. He submits that in view of the aforesaid facts, the impugned order dated 3.4.2020 passed by the Mamlatdar is exceeding his jurisdiction and is in contravention of Section 135 of the Gujarat Land Revenue Code. He submits that the Mamlatdar has exceeded his jurisdiction while allowing the objections of the respondent Nos.6 to 8, who have failed to establish that they are the owners of the subject lands. Further, there is no order passed by any competent authority including the civil court declaring that the respondent Nos.6 to 8 are the owners of the subject lands which are owned by the respondent No.9 Trust. He submits that the sale deed which has been executed by the respondent No.9 Trust in favour of the petitioner has also attained finality and remained unchallenged till date. He submits that the sale deed which has been executed by the respondent No.9 Trust in favour of the petitioner has also attained finality and remained unchallenged till date. He submits that in view of the fact that the respondent Nos.6 to 8 have no right, title or interest to raise any objections against the mutation entry made in favour of the petitioner pursuant to the registered sale deed, the Mamlatdar has grossly erred in allowing the said objections. He, therefore, submits that the present Special Civil Application be allowed and the impugned judgment and order dated 3.4.2020 be quashed and set aside. 4. Per contra, Mr. M.I.Mansuri, learned advocate appearing for the respondent Nos.6 to 8, submits that the petitioner has challenged the order of the Mamlatdar, Saraswati directly before this Court under Article 226 of the Constitution of India. He submits that the petitioner has an effective and efficacious alternative remedy before the learned Dy. Collector, Patan and therefore, the present petition is not maintainable. He further submits that the revenue survey Nos.1118 and 1119 (old revenue survey Nos.159) of village Jangral, Taluka Saraswati, District Patan is of the ownership of the forefathers of the respondent No.6. He submits that the same was originally of the ownership of Shri Chunilal Kanji. He submits that the said Shri Chunilal Kanji was also managing the affairs of the Parmeshwar Mahadev Temple and since the Parmeshwar Mahadev Temple did not have any income of itself, Shri Chunilal Kanji declared that the agricultural yield of the land survey Nos.1118 and 1119 be given to Parmeshwar Mahadev Temple. However, he submits that the ownership of the lands of revenue survey Nos.1118 and 1119 remained with the said Shri Chunilal Kanji. He submits that in view of the same, mutation entry No.70 was mutated recording the possession of Parmeshwar Mahadev Temple and Shri Chunilal Kanji as its trustee and caretaker. It is submitted that after the death of Shri Chunilal Kanji, the name of his legal heir and son, Shri Jivanlal Chunilal was mutated in the revenue record vide mutation entry No.923 recording the possession of Parmeshwar Mahadev Temple and Shri Jivanlal Chunilal as its trustee and caretaker. It is submitted that after the death of Shri Chunilal Kanji, the name of his legal heir and son, Shri Jivanlal Chunilal was mutated in the revenue record vide mutation entry No.923 recording the possession of Parmeshwar Mahadev Temple and Shri Jivanlal Chunilal as its trustee and caretaker. It is further submitted that after the death of Shri Jivanlal Chunilal, the name of his legal heir and son, Shri Pravinlal Jivanlal was mutated in the revenue record vide mutation entry No.2019 again recording the possession of Parmeshwar Mahadev Temple and Shri Pravinlal Jivanlal as its trustee and caretaker. He submits that the said Shri Pravinlal Jivanlal is the husband of the respondent No.6 herein. It is submitted that the lands revenue survey Nos.1120 and 1121 (old revenue survey No.372) of village Jangral, Taluka Saraswati, District Patan is of the ownership of the forefathers of the respondent Nos.7 and 8 namely, Shri Chotalal Tribhovan and Shri Vadilal Madhavlal. The said lands are of the new tenure and mutation entry No.29 was effected recording the names of the forefathers of the present respondent Nos.7 and 8. He submits that since the Parmeshwar Mahadev Temple did not had any income of itself, Shri Chotalal Tribhovan and Shri Vadilal Madhavlal declared that the yields of the said land revenue survey Nos.1120 and 1121 be used for the maintenance and upkeen of Parmeshwar Mahadev Temple. He submits that, however, the ownership of the said lands remained with Shri Chotalal Tribhovan and Shri Vadilal Madhavlal and the ownership of the said lands were never transferred to any person. He submits that Shri Parmeshwar Mahadev Sansthan, Jangral, Patan was registered as Public Charitable Trust under the Bombay Public Trust Act, 1950 on 26.8.1969 vide registration No.A/928/Patan. He submits that in the said trust, Shri Jivanlal Chunilal, Shri Purshottam Ranchodji, Shri Girdharlal Mangalji and Shri Jagjivan Poonambhai are recorded as first trustees. After the death of Shri Jivanlal Chunilal, forefather of respondent No.6 herein, and Shri Purshottam Ranchhodji, the name of their sons i.e. Shri Pravinchandra Jivanlal and Shri Murlidhar Purshottam were recorded as trustees of the Trust. He submits that there are no documents on record to show that how the said properties are of the ownership of the trust which have been auctioned by the trust and duly challenged by the said respondents before the Gujarat Revenue Tribunal. He submits that there are no documents on record to show that how the said properties are of the ownership of the trust which have been auctioned by the trust and duly challenged by the said respondents before the Gujarat Revenue Tribunal. He submits that from the record, it seems that vide mutation entry No.4193 dated 5.11.2019, the names of the deceased trustees were removed and only name of the trust was recorded in the revenue records. He submits that in view of the aforesaid facts, it is apparent that Shri Parmeshwar Mahadev Trust does not have any proof of ownership of the land bearing revenue survey Nos.1118 and 1119 as well as 1120 and 1121. In view of the same, the trust could not have executed any registered sale deed of the said lands in favour of the petitioner. It is submitted that the predecessors had only permitted the agricultural yield of the lands to be taken by the trust. Moreover, the predecessors of the respondent Nos.6 to 8 never gave up the ownership of the said lands and therefore, the sale as well as the mutation entry has been wrongly effected. In view thereof, it is submitted that the Mamlatdar, Saraswati has rightly cancelled the mutation entry No.4206 in favour of the petitioner. He submits that appropriate proceedings have been initiated by the respondent Nos.6 to 8 and the same are pending. In view thereof also, the impugned order dated 3.4.2020 is just and proper. He, therefore, submits that the present Special Civil Application be rejected. 5. Mr. H.M.Parikh, learned Senior Counsel appearing for the respondent Nos.9.1 and 9.2 being the trustees have supported the case of the petitioner. It is submitted that the Trust is the owner of the said lands. It is submitted that even the name of the Trust has been duly recorded in the revenue records. It is submitted that the Trust has alienated the said lands in the interest of Shri Parmeshwar Mahadev Temple after following the due procedure under the Gujarat Public Trusts Act. He submits that though the respondent Nos.6 to 8 have challenged the proceedings before the Joint Charity Commissioner, no interim relief is granted in favour of the said respondents. He submits that even no injunction is granted in the civil suit which is preferred by the petitioner. He submits that though the respondent Nos.6 to 8 have challenged the proceedings before the Joint Charity Commissioner, no interim relief is granted in favour of the said respondents. He submits that even no injunction is granted in the civil suit which is preferred by the petitioner. He submits that in the present case, the petitioner is a purchaser in a public auction which was duly held after seeking appropriate permission from the Charity Commissioner. He submits that, thereafter, the Charity Commissioner has given approval for the sale of the said lands of the Trust. He submits that the petitioner is a bonafide purchaser. It is further submitted that the lands in question have been dedicated to the Trust in the year 1953-54 and the same was recorded in the PTR of the said Trust. He submits that on 3.12.1964 vide mutation entry No.923, the name of the Trust was recorded as the owner and occupier of the said lands. Since then, the lands are in continuous occupation of the Trust. He submits that being Trust lands, necessary permission for sale of these lands under Section 36 of the Act was required. Accordingly, the Charity Commissioner granted due permission for the same by fixing the upset price of the lands at Rs.42,00,000/- and the public notice inviting the bids was also published in the news paper “Gujarat Samachar”. He submits that the petitioner had offered the highest bid of Rs. 45,00,000/- in the said auction. The said bid of the petitioner was accepted by the Joint Charity Commissioner and the objections raised by the respondent Nos.6 to 8 were also rejected by the Joint Charity Commissioner. He submits that the lands in question are of the ownership of the Trust and that the respondent Nos.6 to 8 have no right, title and interest in the same. He, therefore, submits that the present Special Civil Application be allowed and the impugned order dated 3.4.2020 passed by the respondent No.3 in Dispute Case No.2 of 2020 be set aside. 6. Heard learned counsels for the parties and perused the documents on record. 7. He, therefore, submits that the present Special Civil Application be allowed and the impugned order dated 3.4.2020 passed by the respondent No.3 in Dispute Case No.2 of 2020 be set aside. 6. Heard learned counsels for the parties and perused the documents on record. 7. In the present case, it is not in dispute that the respondent No.9 Trust is in the possession and occupant of the lands bearing revenue Survey Nos.1118, 1119, 1120 and 1121 at village Jangral, Taluka Saraswati, District Patan and revenue entry to that effect is on record since the year 1953-54 and the said lands are also recorded in the PTR of the said Trust with the Charity Commissioner’s office. It is further not in dispute that the name of the respondent No.9 Trust is mutated in the revenue record vide mutation entry No.923 dated 3.12.1964 as owner. It is also not in dispute that since the respondent No.9 is a registered Trust, it applied for sale of the subject lands under Section 36 of the Act. Further, the Joint Charity Commissioner, after due inquiry, has permitted the respondent No.9 Trust to sell such lands for the maintenance and upkeep of Shri Paleshwar Mahadev Sansthan Jangral Trust. The respondent No.6 herein had filed objections against the application for sale before the Joint Charity Commissioner, Mahesana which were duly rejected on merits. That, thereafter, a public auction was held in respect of the said lands and the petitioner herein had made a highest bid of Rs.45,00,000/- against the upset price of Rs.42,00,000/-. It is also not in dispute that the Joint Charity Commissioner has accepted the offer of the petitioner and passed an order under Section 36 of the Act permitting the sale of the said lands to the petitioner herein. Pursuant thereto, a sale deed came to be executed and registered as document No.42 of 2020 before the concerned Sub-Registrar’s office. It is pertinent to mention herein that in the said proceedings before the Charity Commissioner, the respondent Nos.7 and 8 did not raise any objections to the permission for sale and thereafter to the execution of the sale deed. The objections of the respondent No.6 were duly considered and rejected. Pursuant thereto the petitioner herein presented the registered sale deed to the respondent No.3 for entering his name in the revenue records on the said basis. The objections of the respondent No.6 were duly considered and rejected. Pursuant thereto the petitioner herein presented the registered sale deed to the respondent No.3 for entering his name in the revenue records on the said basis. Accordingly, Pencil/Kachcha mutation entry No.4206 came to be recorded in the name of the petitioner as purchaser of the said lands from the Trust. At this juncture, the respondent Nos.6 to 8 again filed their objections to the Kachchha mutation entry No.4206 in favour of the petitioner. The Mamlatdar, after considering the objections raised by the respondent Nos.6 to 8, has partly allowed the said objections and refused to certify the Kachcha mutation entry in favour of the petitioner. A perusal of the documents on record in the present case shows that though the respondent Nos.6 to 8 claim to be the legal heirs of the erstwhile owners of the lands in question and further as trustees of the trust, but no where they have produced any documents on record to establish their ownership in the said lands. The respondent Nos.6 to 8 have also never produced any order of the Court / competent authority declaring them as owner of the subject lands. The revenue records show the respondent No.9 Trust as the owner and occupier of the said lands since the year 1953-54 and thereafter, vide mutation entry No.923. Further, the revenue records as relied upon by the Mamlatdar in the impugned order dated 3.4.2020 has recorded that the names of the forefathers of the respondent Nos.6 to 8 came to be removed from the revenue records as owners and occupants of the subject lands after the abolition of the Barkhali Inam Lands Act and in view thereof, the name of the occupier/Trust came to be recorded which has not been challenged till date by the respondent Nos.6 to 8. Despite tracing various mutation entries in respect of the subject lands wherein no where the forefathers of the respondent Nos.6 to 8 have been shown as the owners of the said lands since 1953-54, still the Mamlatdar has refused to certify the entry on the objections of the respondent Nos.6 to 8. Despite tracing various mutation entries in respect of the subject lands wherein no where the forefathers of the respondent Nos.6 to 8 have been shown as the owners of the said lands since 1953-54, still the Mamlatdar has refused to certify the entry on the objections of the respondent Nos.6 to 8. It is important to mention herein that it is noted in the revenue record that the names of the forefathers of the respondent Nos.6 to 8 came to be removed in view of the abolition of the Barkhali Inam Lands Act and the said mutation entry has not been challenged and subsists. Subsequent thereto the name of the respondent No.9 Trust was mutated as the owner and occupier of the said lands. In view thereof the respondent Nos.6 to 8 did not have any locus to raise the objections on the basis of their ownership by heirship for which no document has been produced nor any order of the competent authority/court has been placed on record. 8. It is trite law that once a registered sale deed is presented before the revenue authority under the provisions of Section 135C, the revenue authority has no option but to mutate the name on the basis of such registered sale deed. In the present case, the sale deed has been executed after due permission from the Charity Commissioner and after due procedure adopted under the Act. The objections raised by the respondent No.6 before the Charity Commissioner in the said proceedings also came to be adjudicated on merits and were dismissed. The respondent No.6 has, thereafter, preferred an appeal before the learned Gujarat Revenue Tribunal which is pending and the interim relief has been rejected. Further, the respondent Nos.6 to 8 had also filed Special Civil Suit No.2 of 2020 in the Court of learned Principal Civil Judge, Patan claiming ownership of the said lands and for setting aside the sale deed executed in favour of the petitioner. Such suit was rejected by the learned Principal Civil Judge, Patan under Order VII Rule 11 of Civil Procedure Code vide order dated 11.11.2021 against which, the respondent No.6 has filed an appeal in the District Court, Patan. However, there is no interim order in favour of the respondent No.6 in the said proceedings. 9. Such suit was rejected by the learned Principal Civil Judge, Patan under Order VII Rule 11 of Civil Procedure Code vide order dated 11.11.2021 against which, the respondent No.6 has filed an appeal in the District Court, Patan. However, there is no interim order in favour of the respondent No.6 in the said proceedings. 9. The Mamlatdar in the impugned order has relied upon the circular of the Government which states that if any caretaker of land of public trust is trying to sell the Trust land, then, it should be brought to the notice of the State Government and if any such mutation entry has been made, then appropriate action should be taken to protect the trust land. In the present case, the said circular has no application. The Mamlatdar has erred in applying the said circular to the present case as the lands have been sold after making of a proper application under Section 36 of the Act before the Charity Commissioner who has granted the permission after adjudicating the said application that the sale taken place in accordance with law and duly certified by the Joint Charity Commissioner. In the opinion of this Court, in absence of any document with respect to the ownership of the respondent Nos.6 to 8 and the proceedings of the Charity Commissioner being placed on record and a registered sale deed being presented for mutation of the name of the petitioner, the Mamlatdar ought to have given due credence to the same and ought to have acted in accordance with law in terms of the provision of Section 135C of the Gujarat Land Revenue code. The Mamlatdar, in the present case, has exceeded his jurisdiction by cancelling the mutation entry No.4206 in favour of the petitioner taking into consideration irrelevant circular issued by the State Government which has no application in the present case and has also erred in ignoring the mandate of Section 135C of the Gujarat Land Revenue Code. 10. It is trite law that in all cases where the claim for a mutation entry is based on a registered document, the competent officer has to enter the name of such owner. 10. It is trite law that in all cases where the claim for a mutation entry is based on a registered document, the competent officer has to enter the name of such owner. The revenue authority has no jurisdiction to disregard the legal effect of the registered document and he cannot be permitted to do so even indirectly as he has no adjudicating authority in respect of the title of the land. Once the petitioner has purchased the land in question by the registered sale deed, as in the present case, he is entitled to have his name mutated in the revenue records. In view of the aforesaid observations, the present Special Civil Application is partly allowed. The impugned order dated 3.4.2020 passed by the respondent No.3 – Mamlatdar, Saraswati in LAND/R.T.S./DISPUTE Case No.2 of 2020 is, accordingly, set aside as being bad in law. The respondent No.3 is directed to follow the mandate of Section 135C in respect of the application of the petitioner for mutation of his name in the revenue records and give due credence to the sale deed executed with due permission of the Charity Commissioner. Rule is made absolute to aforesaid extent. No order as to costs.