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2024 DIGILAW 1423 (GUJ)

NAGABHAI HEGODABHAI KANBI v. STATE OF GUJARAT

2024-06-27

PRANAV TRIVEDI, SUNITA AGARWAL

body2024
ORDER : 1. The present Letters Patent Appeal under Clause 15 of the Letters Patent is filed by the appellants - original petitioners assailing the correctness and validity of the order dated 14.03.2023 passed by the learned Single Judge in Special Civil Application No. 2161 of 2018. 2. The prayers made in the writ petition before the learned Single Judge by the original petitioners was to issue an appropriate writ, order or directions quashing and setting aside the order dated 13.12.2017 passed by the Superintendent of Land Records-cum-Consolidating Officer. 3. Learned Single Judge after hearing the contentions and averments made by both the parties was pleased to observe that the impugned orders were rightly passed and does not require any interference in exercise of extraordinary jurisdiction. The writ petition being devoid of merit was accordingly dismissed. 4. The factual matrix which has led to the filing of the writ petition was that the land in question bearing Revenue Survey No. 97 paiki 2 situated at Moje : Vinchivadi, Taluk : Dhanera, District : Banaskantha belonged to the respondent No. 4 (hereinafter referred to as “the respondent”). It is the case of the petitioners that under the Digital India Land Record Modernization Program, the State of Gujarat vide resolution dated 16.09.2013 promulgated resurveying of the lands situated in the District of Banaskantha. Pursuant to resurvey, Revenue Survey No. 97 paiki 2 was renumbered as Survey No. 376 and Survey No. 377 as New Survey No. 376 admeasuring Hectare-Are : 1-76-67 sq. mtr. whereas new Survey No. 377 admeasuring Hectare-Are : 4-33-05 sq. mtr. 4.1 It was the case of the respondent that both the Survey numbers belonged to him. However, after promulgation Survey No. 376 has been shown in the name of the petitioners, whereas Survey No. 377 was reflected in the name of the respondent. 4.2 Being aggrieved by the re-measurement, the respondent preferred an application being Application No. 467 before the respondent authority on 22.11.2016. The said application was allowed ex parte vide order dated 09.03.2017 wherein it was observed that the land bearing Revenue Survey No. 377 will also include the area of the land bearing Revenue Survey No. 376, as initially both the lands belonged to the respondent. The said application was allowed ex parte vide order dated 09.03.2017 wherein it was observed that the land bearing Revenue Survey No. 377 will also include the area of the land bearing Revenue Survey No. 376, as initially both the lands belonged to the respondent. Pursuant to the order dated 09.03.2017, the respondent sold some portion of the land from Survey No. 376 to Amarbhai Andalbhai Kanbi and Devjibhai Madhabhai Kanbi vide sale deed dated 19.06.2017. The names of the purchasers Amarbhai Andalbhai Kanbi and Devjibhai Madhabhai Kanbi were also entered into the revenue records qua the portion of lands sold the same. 4.3 Pursuant to the order dated 09.03.2017, the petitioners then preferred an application dated 19.08.2017 before the respondent authority, requesting to pass fresh orders from the land of respondent and to re-open the revenue records for the land qua Survey No. 376, which was shown in the name of the petitioners. The application dated 19.08.2017 was allowed vide order dated 27.10.2017 by the respondent authority and the revenue records of land bearing Survey No. 376 were again reopened and the land admeasuring 1-76-67 of new Revenue Survey No. 376 was deconsolidated from the land bearing Revenue Survey No. 377. 4.4 The petitioners, therefore, filed application on 13.11.2017 before Respondent No. 2, namely, Superintendent of Land Record-cum-Consolidating Officer that due to sale transaction of the consolidated land being Revenue Survey No. 377, the land was divided into two parts being Revenue Survey No. 377 Paiki 1 admeasuring 4-19-48 sq. mts. and Revenue Survey No. 377 Paiki 2 admeasuring 1-90-02 sq. mts. The petitioner requested to pass an order of mutation of revenue entry pursuant to the order dated 27.10.2017 in the revenue records. The respondent No. 2 passed an order dated 23.11.2017 to deconsolidate the land being Revenue Survey No. 376 admeasuring 1-76-67 sq. mtr. belonging to the petitioners from the land bearing Revenue Survey No. 377 Paiki 1 and further ordered to make changes in the revenue records, accordingly. 4.5 Aggrieved by order dated 23.11.2017, the respondent No. 4 herein again preferred an application before the respondent authority on 12.12.2017, wherein the order dated 23.11.2017 was quashed and the revenue records for the land bearing Revenue Survey No. 376 was closed, by way of an order dated 13.12.2017. This order dated 13.12.2017 was impugned in the captioned writ petition. 4.5 Aggrieved by order dated 23.11.2017, the respondent No. 4 herein again preferred an application before the respondent authority on 12.12.2017, wherein the order dated 23.11.2017 was quashed and the revenue records for the land bearing Revenue Survey No. 376 was closed, by way of an order dated 13.12.2017. This order dated 13.12.2017 was impugned in the captioned writ petition. The writ petition, by way of an order dated 14.03.2023, has been dismissed which is subject matter of challenge in the present Letters Patent Appeal. 5. We have heard Mr. S.P. Majmudar, learned advocate with Mr. Vedant D. Gaikwad, learned advocate appearing for the appellants, Ms. Hetal Patel, learned Assistant Government Pleader appearing for the respondent Nos. 1 to 3 and Mr. Mehul Sharad Shah, learned advocate appearing for the respondent No. 4. 6. Mr. S.P. Majmudar, learned advocate has raised the first contention with regard to the principles of natural justice. It was submitted that the impugned order is contrary to law and evidence on record, inasmuch as, the impugned order was passed on the very next day without even issuing notice to the petitioners appellants. The impugned order, thus, is in violation of principles of natural justice. It was further submitted that the petitioners had never transferred their land to anyone and that they are the rightful owners of the land bearing Revenue Survey No. 376. It was also submitted that the respondent authority by way of an earlier order dated 23.11.2017 had deconsolidated land bearing Revenue Survey No. 376 admeasuring Hectare - Are: 1-76-67 belonging to the petitioners from the land bearing Revenue Survey No. 377. Such order dated 23.11.2017 was just and proper and should not have been interfered with. It was further submitted that by passing an ex parte order, substantial right and interest of the petitioners were affected and the petitioners, who are the rightful owners of the land in question would wrongfully deprived of their land. 7. Per contra, Mr. Mehul Sharad Shah, learned advocate appearing for the respondent No. 4 has vehemently argued and contended that originally both Revenue Survey Nos. 376 & 377 belonged to the respondent. This issue is not in dispute if the total land area of Revenue Survey Nos. 376 & 377 was Hectare - Are: 6-09-72. Mr. Shah, learned advocate has also taken us through the family partition of Shri Kanbi Parbha Hardas. 376 & 377 belonged to the respondent. This issue is not in dispute if the total land area of Revenue Survey Nos. 376 & 377 was Hectare - Are: 6-09-72. Mr. Shah, learned advocate has also taken us through the family partition of Shri Kanbi Parbha Hardas. It was also submitted that originally there are two survey numbers belonging to Shri Kanbi Parbha Hardas being Old Survey No. 89 & 97. Shri Kanbi Parbha Hardas had three sons; (i) Ananda Prartha, (ii) Hegoda Pratha and (iii) Uma Partha i.e. the respondents herein. Old Survey No. 89 had dwelled upon Ananda Prartha that is not in dispute. Old Survey No. 97 paiki 1 Acre 15.29 which is now new Survey No. 379 dwelled upon Hegoda Pratha who happens to be the father of the present petitioner. This aspect is also not in dispute that new Survey No. 379 belonged to predecessor in title of the present petitioner. The third portion of land was old Survey No. 97 paiki 2 Acre 15.2 i.e. Hectare - Are 6-12-09 that dwelled upon the respondent No. 4. Such land in new Survey Number came to be renumbered as Survey No. 377. Therefore, one of land in Survey No. 377 ought to have been land admeasuring Hectare - Are 6- 12-09. However, suddenly from Survey No. 377 another Survey No. 376 was carved out and out of Hectare - Are 6-12-09, Hectare - Are 1-76-67 was taken out and shown in the name of present petitioners without any reason. Therefore, the present petitioners not only got lands of their predecessor in title i.e. new Survey No. 379, but also got some portion of new Survey No. 377, which belonged to the respondent No. 4. It was, therefore, submitted that when the said clerical mistake was brought to the knowledge of the respondent authority, the authority has only corrected the same by order dated 09.03.2017. There is no dispute that new Survey No. 377 belonged to the respondent No. 4 and the total area of Hectare - Are 6-12-09. There is no basis as to how from new Survey No. 377, new Survey No. 376 had been carved out and given to the petitioners. 7.1 Be that as it may, it was argued by Mr. Shah, learned advocate that once the mistake came to the knowledge to the authority, it was appropriately rectified. There is no basis as to how from new Survey No. 377, new Survey No. 376 had been carved out and given to the petitioners. 7.1 Be that as it may, it was argued by Mr. Shah, learned advocate that once the mistake came to the knowledge to the authority, it was appropriately rectified. Therefore, the petitioners cannot succeed on the plea of violation of principles of natural justice. It was further submitted that the land which did not belong to the petitioners at all cannot be dwelled upon them due to some changes in the record on account of clerical error. Further there is no proof as to right of the petitioners or their predecessor-in-title with regard to new Survey No. 376, which was carved out of new Survey No. 377. In such circumstances, the order dated 13.12.2017 is just and proper and may not be interfered with. 8. We have heard learned advocates appearing on behalf of both the parties and perused the material on record. The short controversy herein is with regard to entry of new Survey No. 376 in the name of the rival parties. It is an established fact that new Survey No. 376 was not reciprocal to any old Survey number. There was an old Survey No. 97 paiki 2 admeasuring Hectare - Are 6-12-09, which came to be numbered as new Survey No. 377 belonged to the respondent No. 4. Subsequent to promulgation, land admeasuring Hectare - Are 1-76-67 was taken out of new Survey No. 377 and was given new Survey No. 376. 9. On query being raised, the only answer given by Mr. Majmudar, learned advocate for the original petitioners with regard to such anomaly was that there was an oral agreement between the petitioners and respondent No. 4 and on the basis of that, land bearing new Survey No. 376 was allotted to the petitioners. However, there is no documentary evidence whatsoever on record, wherein petitioners can claim that new Survey No. 376 was allotted to them. However, there is no documentary evidence whatsoever on record, wherein petitioners can claim that new Survey No. 376 was allotted to them. Once there is no documentary evidence that the land was not allotted to the petitioners and there is a material indicating that new Survey No. 376 was part of new Survey No. 377, then in our considered opinion it cannot be said new Survey No. 376 could have been dwelled upon the petitioners or they could have acquired any right in the said land. 10. For the above, we are complete agreement with the learned Single Judge, wherein it has been observed that the order dated 13.12.2017 cannot be said to be an ex parte, but it was a rectification order, which was passed by the respondent authority correcting its own order dated 09.03.2017 on the basis of revenue records, which existed prior to the resurvey. 11. That being the position of fact, we see no reason to interfere with the order passed by the learned Single Judge. Resultantly, the Letters Patent Appeal being devoid of merits is hereby dismissed with no order as to costs. 12. In view of the order passed in the Letters Patent Appeal, connected Civil Application stands disposed of.