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2023 DIGILAW 789 (GUJ)

Patel Revabhai Talsibhai v. State of Gujarat

2023-07-04

NIRAL R.MEHTA

body2023
ORDER : 1. By way of this petition under Articles 226 and 227 of the Constitution of India read with the provisions of the Gujarat Land Revenue Code, 1879 and the rules framed thereunder, the petitioner has called in question the orders dated 24th June 2015, 3rd December 2008 and 10th February 2006 passed by the Principal Secretary (Appeals), Collector, Sabarkantha and Deputy Collector, Idar respectively, wherein the authorities have refused to mutate the name of the petitioner in the record of right pursuant to the registered sale deed dated 26th December 2003. 2. The brief facts of the case can be stated as under : 2.1 The agricultural lands bearing survey Nos.297 and 296 situated at village : Vadali, District : Sabarkantha, being the family property, came to be acquired by the petitioner by way of inheritance. 2.2 On 17th December 2003, the petitioner had sold the entire holding of agricultural lands situated at village : Vadali, District : Sabarkantha bearing survey Nos.296 and 297 to Dineshbhai Amichandbhai Patel and Natwarbhai Dhulabhai Patel respectively by way of registered sale deed. Pursuant to the said sale deed, entries Nos.11105 and 11106 came to be mutated on 25th May 2004. 2.3 However, due to some consideration issues, the petitioner has repurchased the aforesaid land from Dineshbhai Amichandbhai Patel and Natwarbhai Dhulabhai Patel by way of registered sale deed on 26th December 2003. 2.4 Pursuant to the said registered sale deed dated 26th December 2003, the petitioner made an application for mutation of his name in the revenue record, however, the Mamlatdar, Vadali, vide its order dated 21st May 2005, rejected the application broadly on the ground that the petitioner has not obtained farmer certificate before purchasing the land as with effect from 17th December 2003, the petitioner was no longer an agriculturist as having sold his entire holding of agricultural lands. 3. Being aggrieved by the aforesaid, the petitioner preferred an appeal before the Deputy Collector, Idar being RTS Appeal No.RTS/Appeal/20/2005. However, the Deputy Collector, Idar, vide its order dated 10th February 2006, rejected the appeal by confirming the order passed by the Mamlatdar, Vadali. 4. As against the aforesaid order dated 10th February 2006 passed by the Deputy Collector, the petitioner approached the District Collector, Sabarkantha by way of RTS Revision application No.RTS/Revision/Case No.13/2006. However, the Deputy Collector, Idar, vide its order dated 10th February 2006, rejected the appeal by confirming the order passed by the Mamlatdar, Vadali. 4. As against the aforesaid order dated 10th February 2006 passed by the Deputy Collector, the petitioner approached the District Collector, Sabarkantha by way of RTS Revision application No.RTS/Revision/Case No.13/2006. However, the District Collector, Sabarkantha, vide its order dated 3rd December 2008, rejected the revision application preferred by the petitioner. 5. Being aggrieved by the aforesaid, the petitioner approached the respondent No.1 – the Principal Secretary (Appeals), Revenue Department by way of revision application No.MVV/HKP/SBR/14/2009. However, the respondent No.1, vide its order dated 24th June 2015, rejected the said revision application preferred by the petitioner confirming the orders passed by the subordinate revenue authorities. 6. Being aggrieved and dissatisfied by the aforesaid, the petitioner has approached this Court by way of this petition for appropriate writ, order or directions. 7. I have heard Mr. R.K. Mansuri, learned advocate for the petitioner and Mr. Nikunj Kanara, learned A.G.P. for the respondent – State of Gujarat. Since the issue involved in the petition is squarely covered by the decision of this Court and with the consent of learned advocates appearing for the respective parties, the present petition is taken up for final hearing at the admission stage. 8. Mr. Mansuri, learned advocate for the petitioner, while assailing the orders passed by the revenue authorities, has made the following submissions : 8.1 Mr. Mansuri, learned advocate for the petitioner submitted that the orders passed by the revenue authorities are not tenable in the eye of law being contrary to the provisions of the Gujarat Land Revenue Code and the rules framed thereunder. 8.2 Mr. Mansuri submitted that the petitioner is the registered sale deed holder and thereby, in view of the provisions of Section 135C of the Gujarat Land Revenue Code, it is the duty of the revenue authorities to mutate the name of the holder of the registered sale deed in the record of right. However, the authorities have ignored the said provisions and refused to mutate the name of the petitioner, is violative of the provisions of Section 135C of the Code. 8.3 Mr. However, the authorities have ignored the said provisions and refused to mutate the name of the petitioner, is violative of the provisions of Section 135C of the Code. 8.3 Mr. Mansuri further submitted that as such, the lands bearing survey Nos.296 and 297 purchased by the petitioner were originally owned by him which were sold to one Dineshbhai Amichandbhai Patel and Natwarbhai Dhulabhai Patel respectively just on 17th December 2003. However, due to some consideration issues, a reverse sale deed was required and accordingly, within a period of 9 days, by way of registered sale deed dated 26th December 2003, the petitioner has repurchased the aforesaid lands in question. In that view of the matter, Mr. Mansuri submitted that as the interregnum period of just 9 days, the petitioner did not take prior permission of the District Collector, Sabarkantha before purchasing the agricultural land. According to Mr. Mansuri, in view of Government Resolution dated 1st July 2009, the duty has been cast upon the revenue authorities to issue farmer certificate in case of sale of agricultural land. Mr. Mansuri submitted that as per the said resolution dated 1st July 2009, it is not obligatory on the part of the petitioner to apply for the farmer certificate and it is the duty of the revenue authorities to issue farmer certificate to the person concerned. Relying upon the Government Resolution dated 1st July 2009, Mr. Mansuri submitted that the orders passed by the revenue authorities are contrary to the said resolution and thereby, requires to be quashed and set aside by this Court. 8.4 Mr. Mansuri submitted that even otherwise, while exercising power under the revenue proceedings, whether the person is an agriculturist or not, or whether any permission was obtained or not, cannot be looked into, more particularly, when the petitioner is the registered sale deed holder. Considering the agricultural status of the petitioner in the revenue proceedings, would be an exercise of cross jurisdiction, and thus, relying upon the decision of this Court in the case of Gandabhai Dalpatbhai Patel vs. State of Gujarat & Others, reported in 2005 (2) GLR 1370 , Mr. Mansuri requested this Court to quash and set aside the impugned orders passed by the revenue authorities. 9. Per contra, Mr. Nikunj Kanara, learned A.G.P. for the respondent – State of Gujarat, while opposing the present petition, has made the following submissions : 9.1 Mr. Mansuri requested this Court to quash and set aside the impugned orders passed by the revenue authorities. 9. Per contra, Mr. Nikunj Kanara, learned A.G.P. for the respondent – State of Gujarat, while opposing the present petition, has made the following submissions : 9.1 Mr. Kanara, learned A.G.P. submitted that the orders passed by the revenue authorities are perfectly justified and no interference is required by this Court. 9.2 Mr. Kanara further submitted that admittedly, the only land came to be sold by the petitioner on 17th December 2003, and thus, purchase of the land on 26th December 2003, the petitioner was not an agriculturist nor permission and/or farmer certificate to that effect was obtained before purchase of the agricultural land. Mr. Kanara, therefore, submitted that the orders passed by the revenue authorities in not mutating the name of the petitioner in the revenue record is thereby cannot be said to be wholly illegal. 9.3 Mr. Kanara, however, could not dispute the Government Resolution dated 1st July 2009 passed by Revenue Department as well as the ratio laid down by this Court in the case of Evergreen Apartment Co-Operative Housing Society Limited, reported in 1991 (1) GLH 155 and in the case of L.R.s of Popat Khima Ramani and others vs. Collector, Rajkot and others, reported in 2003 (1) GLH 30 . 10. By making above submissions, Mr. Kanara, learned A.G.P. has prayed this Court to dismiss the present petition. 11. I have heard learned advocates appearing for the respective parties and have gone through the material produced on record. No other and further submissions have been canvassed by the learned advocates appearing for the respective parties. 12. A short question falls for the consideration by this Court as to whether while exercising the powers under the provisions of the Gujarat Land Revenue Code, the revenue authority could go into the violation of the Tenancy Act or any other enactment? 13. The aforesaid question is no more res integra. This Court has in the case of Gandabhai Dalpatbhai Patel (supra) observed thus : “9. It is the consistent view taken by this Court in catena of judgments that the revenue authorities while dealing with RTS proceedings had no jurisdiction and/or authority to decide the question of title and if there is any dispute with regard to title the parties are to be relegated to the Civil Court. It is the consistent view taken by this Court in catena of judgments that the revenue authorities while dealing with RTS proceedings had no jurisdiction and/or authority to decide the question of title and if there is any dispute with regard to title the parties are to be relegated to the Civil Court. As held by the Hon'ble Supreme Court in the case of State of Gujarat Vs. Patel Raghav Natha - AIR 1969 SC Page 1297 and judgment of this Court in the case of Ratilal Chunilal Solanki & Ors. Vs. Shantilal Chunilal Solanki - 1996 (2) GLR 525 and Siddharth B. Shah vs. State of Gujarat, reported in 1999 (3) GLR Page 2527, the revenue authorities cannot decide the disputed question of title to the property and they have to merely go by the documents produced before them. Even this Court has held in the case of Nathabhai Meraman Darji (Supra) that when a document of registered sale deed is produced before the authority, the revenue authorities are bound to give effect to the same and are not required to decide the question of title. 10. Even this Court in a recent judgment in the case of L.R.s of Popat Khima Ramani and Ors. vs. Collector, Rajkot and Ors., reported in 2003 (1) GLH 30 , has considered the scope of revenue authorities while deciding the question with regard to mutation entry and the powers under Section 135 and Rule 108, has held that revenue authorities are not to decide the question about title and the revenue authorities are to make necessary entries on the basis of decision of Civil Court. It is further held in the said judgment that the revenue authorities are invested with limited powers under Section 135 and they cannot assume to themselves certain powers conferred on them by law and they cannot assume jurisdiction of Civil Court. The revenue authorities cannot decide validity of transaction on touchstone of statutory provision occurring in some enactment and that they cannot decide disputed question of title. In fact, this Court has gone to the extent that when a dispute as to the title arises the parties have to go to the competent Civil Court. The revenue authorities cannot decide validity of transaction on touchstone of statutory provision occurring in some enactment and that they cannot decide disputed question of title. In fact, this Court has gone to the extent that when a dispute as to the title arises the parties have to go to the competent Civil Court. In the present case, in fact the Civil Suit is pending between the parties and the Civil Court is to decide all these questions which are raised by the petitioner in the present Special Civil Application with regard to validity of the power of attorney, the genuineness of sale deed, and the authority of power of attorney holder on the basis of the power of attorney. Considering the fact that the suit is pending between the parties and that the petitioner has challenged the legality and validity of the sale deed before the Civil Court and that there is an injunction in the said Suit, in fact the Secretary (Appeals) has tried to strike the balance and has tried to protect the interests of all the parties by directing that the factum of injunction granted by the Civil Court should also be noted in the entry and that the entry in favour of respondent No.5 would be subject to the ultimate outcome of the suit pending between the parties in which the legality and validity of the sale deed is challenged. It cannot be said that there is any illegality committed by the Secretary (Appeals). On the contrary, the judgment and order passed by the revisional authority, i.e. Secretary (Appeals) is in consonance with the provisions of Section 135 of the Bombay Land Revenue Code and 108 of the Bombay Land Revenue Rules and the view taken by the Hon'ble Supreme Court as well as this Court with regard to the powers of revenue authorities while dealing with the question of mutation entries. The revenue authorities are not required to consider with regard to the genuineness of the sale deed, the powers and authority of the power of attorney holder under the power of attorney and the question with regard to the title. The revenue authorities are not required to consider with regard to the genuineness of the sale deed, the powers and authority of the power of attorney holder under the power of attorney and the question with regard to the title. What is required to be done by the Sub-Registrar at the time when the sale deed was executed cannot be permitted to be done by the Mamlatdar and/or revenue authorities while deciding the question with regard to mutation entry, more particularly the entry in the record of rights is only having a presumptive value and only for a fiscal purpose of recovering and payment of revenue and it does not confer any right, title or interest in favour of any party in the property. 11. So far as submissions and arguments on behalf of the petitioner that by virtue of the aforesaid transaction that there would be a breach of provisions of the Bombay Prevention of Fragmentation Act as the land would be fragmented and therefore also the respondent could not have purchased the land in question and the said transaction was in breach of provisions of the Act and therefore also the entry in favour of the respondent could not have been made on the basis of the said sale. This aspect is already considered by this Court in the case of Evergreen Apartment Cooperative Housing Society Vs. Special Secretary, Revenue Department, Gujarat State, reported in 1991 (1) GLR 113 , and also in the case of Siddharth B. Shah & Ors. Vs. State of Gujarat, reported in 1999 (3) GLR Page 2527. This Court in the aforesaid two judgments has considered the scope and ambit of Rule 108 of the Bombay Land Revenue Rules and the jurisdiction of the revenue authorities while considering the RTS proceedings and has held as under; "So far as the proceedings under Section 108 of the Rules popularly known as RTS proceedings are concerned it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by the competent authorities under special enactments. Such mutations have to follow either the documents of title or the orders passed by the competent authorities under special enactments. Independently the revenue authorities, as mentioned in 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transactions recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed." Considering the judgment of this Court in aforesaid two cases, there is no substance in the argument and submission on behalf of the petitioner to the effect that while considering the RTS proceedings and making necessary entry in favour of the respondents, the revenue authority was also required to consider that by aforesaid transaction there will be breach of provisions o Fragmentation Act or not and the same is required to be rejected.” 14. In view of the aforesaid enunciation of law, it is not possible for me to take any other view other than what has been taken by this Court in the aforesaid judgment. In my view, the revenue authorities have exceeded the jurisdiction while not mutating the name of the petitioner in the record of right by entering into the areas of Tenancy Act. Those powers can be exercised by the authority independently in accordance with law, but certainly not in a revenue proceeding. Admittedly, the petitioner was an agriculturist as on 17th December 2003 till he sold his only agricultural land in question which was purchased by the petitioner within 9 days i.e. on 26th December 2003. It is pertinent to note that the petitioner has purchased the same land sold by him because of some consideration issues amongst the parties. Be that as it may, admittedly, it is within a period 9 days, the petitioner has purchased the land. It is pertinent to note that the petitioner has purchased the same land sold by him because of some consideration issues amongst the parties. Be that as it may, admittedly, it is within a period 9 days, the petitioner has purchased the land. While refusing to mutate the entries, in my view, the revenue authorities have gone completely in oblivion to the factum of the Government Resolution dated 1st July 2009 wherein it has been resolved that after selling of agricultural land, the farmer certificate shall have to be issued automatically, for which, the farmer has not to apply independently, meaning thereby, the obligation cast upon the revenue authorities to issue agricultural certificate immediately after the sale of the agricultural land. However, the authorities have on one hand not followed the Government Resolution dated 1st July 2009 and on the other hand, not complied with the obligation cast upon by way of Section 135C of the Gujarat Land Revenue Code. 15. In view of the aforesaid facts and circumstances, in my considered opinion, the orders passed by the revenue authorities are in violation of Section 135C of the Gujarat Land Revenue Code as well as being passed in ignorance of the Government Resolution dated 1st July 2009. Thus, the orders passed by the revenue authorities deserve to be quashed and set aside. 16. For the foregoing reasons, the present petition is allowed. The orders dated 24th June 2015, 3rd December 2008 and 10th February 2006 passed by the Principal Secretary (Appeals), Collector, Sabarkantha and Deputy Collector, Idar respectively are hereby quashed and set aside by remanding the matter back to the Mamlatdar, Vadali, District : Sabarkantha to take out a fresh proceeding with regard to mutation of entries pursuant to the lands bearing survey Nos.296 and 297 situated at village : Vadali, District: Sabarkantha keeping in mind the Government Resolution dated 1st July 2009.