Subhadraben Jayantilal Mehta vs Mamalatdar,Gandhinagar Taluka
2021 Latest Caselaw 17942 Guj

     C/SCA/6207/2016                             JUDGMENT DATED: 01/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6207 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER                Sd/-

================================================================

1     Whether Reporters of Local Papers may be allowed                No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         No

3     Whether their Lordships wish to see the fair copy               No
      of the judgment ?

4     Whether this case involves a substantial question               No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

================================================================
                   SUBHADRABEN JAYANTILAL MEHTA
                              Versus
              MAMALATDAR,GANDHINAGAR TALUKA & 2 other(s)
================================================================
Appearance:
DECEASED LITIGANT(100) for the Petitioner(s) No. 1
MR PJ MEHTA(467) for the Petitioner(s) No. 1.1,1.2,1.3,1.4
MR NIKUNJ KANARA, AGP (1) for the Respondent(s) No. 1,2
================================================================

    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 01/12/2021

                            ORAL JUDGMENT

1. By way of this petition, the petitioner has challenged the decision of Mamlatdar, Gandhinagar, passed in Remand Case No.283 of 2015 relating to entry No.7274 of Unava, District- Gandhinagar, dated 11.2.2016. By the impugned order passed in Remand Case, Mamlatdar, Gandhinagar has rejected the application of the petitioner and upheld earlier order dated

C/SCA/6207/2016 JUDGMENT DATED: 01/12/2021

8.2.2013 rejecting the prayer of the petitioner to certify entry no.7274 dated 5.1.2008 relating to heir-ship.

2. Short facts of the case are that the deceased Jayantilal Somalal Mehta was having ancestral property, which includes parcel of land being revenue Survey/Block no.336, 1889, 1846 and 1871. Hence, some other parcels of land were sold out. That Shri Jaynatilal Somalal Mehta died on 8.7.2006. Therefore, original petitioner Shubhadraben Mehta filed an application for succession rights in immovable property on 5.12.2007. Kachcha entry no.7274 was made on 5.1.2008 in Form No.6 in record of rights. That same entry came to be rejected on the ground that notice under Section 135 (D) of the Gujarat Land Revenue Code was not served to other affected parties. It is stated that against that order she approached Circle Officer, whereby matter was remanded back to Mamlatdar for appropriate mutation entry in the revenue record of the petitioner's family. That accordingly mutation entry no.7603 was carried out on 25.4.2009. It is contended that in said order there was mistake in mentioning Survey/Block No.124 and 1024. Accordingly, order was rectified.

2.1 It is further the case that as per the remand order of Prant Officer, objectionable revenue entry no.1024, which was previously sold by the forefathers of the petitioner, Mamlatdar, Gandhinagar, has rejected all revenue survey number entries including mutation entry no.7224 on 5.1.2008 inspite of written arguments of the petitioner to delete only objectionable revenue survey no.1024 and remaining Survey Nos.336, 1846, 1871, 1889 in mutation entry no.7274 are of ownership of the petitioner's husband.

C/SCA/6207/2016 JUDGMENT DATED: 01/12/2021

2.2 It is further the case that there was further remand and ultimately, the impugned order was passed by Mamlatdar though all documents were produced by the petitioner and yet it was observed in the impugned order that no documents were produced.

2.3 On the basis of the aforesaid facts, it is contended that action on the part of the Mamlatdar is improper and some direction needs to be issued to the respondent for deciding the subject matter of mutation entry of the petitioner and her legal heirs for Survey/Block No.336, 1846, 1871 and 1889 of Village- Unava, District & Sub-district Gandhinagar, on the basis of the documents produced by the petitioner to the concerned officer and to examine and verify forthwith mutation entry no.7274 with other entries and to certify the entries in respect of the absolute ownership of the petitioner and legal heirs. In addition to that, it is prayed that exemplary cost of Rs.25,000/- be imposed upon Mr.D.G.Modi, Mamlatdar, who has decided the application and to call for his explanation.

3. Heard learned advocate Mr.P.J.Mehta for the petitioner and learned AGP, Mr.Nikunj Kanara for the respondent-State.

4. Mr.P.J.Mehta, learned advocate for the petitioner has submitted the same facts, which are narrated herein above and has also referred to each and every document placed on record and has submitted that the petitioner has clearly submitted all the documents with her application at Annexure- G, page 37 and copy thereof is placed before Mamlatdar has also been taken out from the record of Mamlatdar office and

C/SCA/6207/2016 JUDGMENT DATED: 01/12/2021

placed it on record from page 38 to 48 and though these papers were available with the application, the Mamlatdar has observed that no document is produced. According to Mr.Mehta, this is against the material placed on record and, therefore, considering the history of the litigation instead of remanding the matter to Mamlatdar, this Court may direct the authority to rectify the error and pass appropriate order in favour of the petitioner by holding them as owners and to mutate their names in the revenue record as owners. He has also referred to reply affidavit as well as rejoinder affidavit and prayed to pass appropriate order granting reliefs as prayed for in this petition.

5. Per contra, learned AGP Mr.Kanara has submitted that in view of the affidavit filed by the Mamlatdar at page 53, since no documentary evidence was produced at the relevant time, the Mamlatdar has passed the impugned order and there is no illegality committed. He has also submitted that the right of appeal is available with the petitioner to approach higher authority as has been reflected in the order itself and, therefore, alternative remedy is available to the petitioner. He, therefore, prayed to dismiss the petition.

6. Having considered the submissions made on behalf of both the sides and the material placed on record, it clearly transpires that entry no.7274 dated 5.1.2008 regarding heir- ship has been entered into, however, as per the remarks column thereof notice to other affected persons were not served and due to that entry was rejected. At this juncture, it is pertinent to note that it was the duty of the revenue authority to get the notice served upon the other side and it is not the

C/SCA/6207/2016 JUDGMENT DATED: 01/12/2021

duty of the person concerned to get it served to other side. Therefore, the ground stated for rejection of entry itself is not legal and valid. It also appears from record that rejection of said entry came to be challenged before the concerned Prant Officer, and vide order dated 17.3.2009, the Prant Officer, Gandhinagar, in RTS/DA.SU.No.38/2009 has remanded the matter for reconsideration and to make re-entry of the same. It also appears from the revenue records that in a remand application, Survey No.124 and 1024 came to be deleted as it was erroneously written.

7. It also appears from order dated 8.2.2013 in Remand/RTS/Takrari/Case No.110/2012 that while dealing with two entries, the concerned Mamlatdar has deleted entries pertaining to all the Blocks and, therefore, matter came to be remanded back, vide order dated 30.9.2015 by the Prant Officer, Gandhinagar, and to decide the issue of heir-ship of Survey/Block No.146, 193, 336 and other lands. On perusal of the record, it appears that along with application at page 31, the petitioner has also placed on record other documentary evidence before the concerned Mamlatdar but unfortunately the concerned Mamlatdar has observed that no document has been placed on record by the petitioner. It appears from papers at pages 38 to 48 that the same are certified copies, which were produced before concerned Mamlatdar in a remand case. Thus, it appears that concerned Mamlatdar at the relevant time with some motive best known to him has not taken into consideration those documents and has mechanically passed the same order.

C/SCA/6207/2016 JUDGMENT DATED: 01/12/2021

8. Considering all these facts, this Court is of the considered opinion that the matter be sent back to the concerned Mamlatdar for deciding afresh in accordance with law and especially in view of the observations made herein above relating to factual aspects. Therefore, the concerned Mamlatdar i.e. respondent no.1 is hereby directed to decide the impugned mutation entry with regard to the petitioner and her legal heirs for land of Survey/ Block Nos.336, 1871, 1846 and 1889 of Village-Unava, District and Sub-district Gandhinagar, afresh within a period of 30 days from the date of receipt of the order of this Court. He should also examine and verify mutation entry no.7274 of Unava, District & Sub- district-Gandhinagar, in relation to aforesaid blocks.

9. With these observations, present petition is allowed. Rule is made absolute with no order as to costs. Direct service is permitted.

Sd/-

(DR. A. P. THAKER, J) R.S. MALEK