Gujarat High Court
Zala Mahendrasinh Mahipatsinh vs State Of Gujarat on 19 March, 2021
Bench: Bhargav D. Karia
C/SCA/7251/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7251 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ZALA MAHENDRASINH MAHIPATSINH
Versus
STATE OF GUJARAT & 5 other(s)
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Appearance:
MR D B DESAI(6771) for the Petitioner(s) No. 1
MR VIRAT G POPAT(3710) for the Petitioner(s) No. 1
MR CHINTAN DAVE, AGP (1) for the Respondent(s) No. 1
MR VIJAY H NANGESH(3981) for the Respondent(s) No. 6
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3,4,5
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 19/03/2021
ORAL JUDGMENT
1. Heard learned advocate Mr. Virat Popat for the petitioner,
learned Assistant Government Pleader Mr. Chintan Dave for
the respondent-State and learned advocate Mr. Vijay Nangesh
for respondent No.6 through video conference.
C/SCA/7251/2015 JUDGMENT
2. Rule. Learned Assistant Government Pleader Mr. Chintan
Dave waives service of notice of rule on behalf of respondent-
State and learned advocate Mr. Vijay Nangesh waives service
of notice of rule on behalf of respondent No.6.
3. By this petition under Article 227 of the Constitution of India,
the petitioner has challenged the order dated 28.01.2015
passed by the Special Secretary, Revenue Department
(Appeals) ['SSRD' for short], order dated 24.12.2013 passed
by the Collector, Surendranagar and order dated 15.04.2013
passed by the Deputy Collector, Surendrangar.
4. Brief facts of the case are that one Gurubha Anopsinh Zala
was the owner of land admeasuring 16 Acres and 4 Gunthas
situated at Survey No. 365/2 in Village Mota Timbia, Taluka-
Limdi, District-Surendranagar.
4.1. It appears that three sale deeds came to be executed in
connection with the said survey number as under:
(i) Sale deed dated 09.02.1987 was executed in favour of
respondent No.6-Zala Khumansinh Nanbha for the land
admeasuring 6 Acres and 32 Gunthas;
(ii) Sale deed dated 09.02.1987 for the land admeasuring
3 Acres and 1 Guntha was executed in favour of one
Pradhyuman Sattubha Zala;
C/SCA/7251/2015 JUDGMENT
(iii) The sale deed dated 16.04.1992 for the land admeasuring
9 Acres and 36 Gunthas was executed in favour of four other
persons viz. Rana Keshubha Bhurubha, Rana Tapubha
Bhurubha, Dolubha Bhurubha and Ghanshyamsinh Bhurubha
who, in turn, executed the sale deed in favour of the
petitioner. However, the land which was left after executing
the aforesaid two sale deeds was only 6 Acres and 11 Gunthas.
As there was discrepancy in the area of the land which was
existing, a rectification deed dated 10.06.1994 was executed in
favour of the petitioner.
4.2 The respondent No.6 did not care to mutate the revenue
entry on the basis of the sale deed dated 09.02.1987 till 2011
and applied for such mutation by approaching the Revenue
Authority on 06.08.2011. The Mamlatdar, by order dated
27.09.2011, rejected the Entry No. 3005 refusing to register the
sale deed in favour of respondent No.6 on the ground that there
was discrepancy in the area of the land. However, Entry no.
1836 was mutated in revenue records on 19.03.1998 with
regard to rectification deed dated 10.06.1994 and thereafter
Entry no. 2642 dated 29.04.2009 was mutated in favour of
Pradhymansinh Zala on the basis of the sale deed dated
09.02.1987. The respondent No.6 being aggrieved by rejection
of the Entry No. 3005 preferred RRT Case No. 9 of 2012
before the Deputy Collector. The Deputy Collector, by order
dated 15.04.2013, directed the Mamlatdar to certify the Entry
No. 3005 with regard to sale deed in favour of the respondent
C/SCA/7251/2015 JUDGMENT
No.6 for land admeasuring 6 Acres and 32 Gunthas and further
directed the Mamlatdar to cancel the Entry No. 1836 and 2642
by remanding the matter back to the Mamlatdar to decide the
same afresh after considering the documents on record.
4.4 The petitioner being aggrieved by the order passed by
the Deputy Collector preferred Revision Application No. 90 of
2013-14 before the Collector, Surendranagar which was also
rejected by the order dated 24.12.2013.
4.5 The petitioner challenged the order passed by the
Collector before the Special Secretary, Revenue Department
[Appeals] ['SSRD' for short] by preferring two Revision
Applications No. 2 of 2014 and 3 of 2014; one by the
petitioner and one by the legal heirs of the original owner. The
SSRD by order dated 28.01.2015 rejected the revision
applications.
5. Learned advocate Mr. Popat appearing for the petitioner
submitted that the Deputy Collector, while passing order dated
15.04.2013 in RRT Case No. 9 of 2012, could not have
confirmed the Entry No. 3005 dated 27.09.2011 with regard to
6 Acres and 32 Gunthas of land of Survey No. 365 mutated in
the name of respondent No.6. It was submitted that the
petitioner's case was not heard on merits with regard to Entry
No. 1836 dated 19.03.1998 and Entry No. 2642 dated
09.04.2009 which are rejected and the matter was remanded
back to the Mamlatdar to decide afresh with regard to those
C/SCA/7251/2015 JUDGMENT
entries as those entries pertained to the transaction of sale
executed in favour of the petitioner by the original land
owners.
6. It was submitted that the Deputy Collector ought to have
remanded the entire matter to the Mamlatdar to decide afresh
with regard to all the entries including Entry No. 3005 dated
27.09.2011 as the said entry was not certified by the
Mamlatdar and which was challenged by the respondent No.6
before the Deputy Collector. It was submitted by Mr. Popat
that the Deputy Collector ought to have quashed and set aside
the order of the Mamlatdar not certifying Entry No. 3005 and
ought to have remanded the matter back to the Mamlatdar
along with the entries which are mutated with regard to the
transactions entered into by the original owners with the
petitioners since there is anomaly with regard to measurement
of the land which is sold to the petitioner as well as respondent
No.6 by the original owners which can be taken care by the
Mamlatdar on the basis of the report which may be obtained
from the District Inspector of land records.
7. Learned advocate Mr. Popat submitted that the orders passed
by the Collector and the SSRD are only reiterating the facts
narrated by the Deputy Collector without giving any reason
while confirming such order. It was therefore, prayed that both
the orders passed by the Collector and SSRD are required to
be quashed and set aside and the order passed by the Deputy
C/SCA/7251/2015 JUDGMENT
Collector is required to be modified by remanding the matter
back to the Mamlatdar with regard to all the three entries i.e.
Entry No. 3005, Entry No. 1836 and Entry No. 2642 so as to
decide afresh by the Mamlatdar after giving an opportunity of
hearing to all the concerned parties.
8. On the other hand, learned advocate Mr. Vijay Nangesh
appearing for respondent No.6 submitted that the Deputy
Collector has taken into consideration facts of the case and has
perused the material on record and thereafter passed the
impugned orders certifying the Entry No. 3005 in favour of
respondent No.6 and as the Entries No. 1836 and 2642 are
certified by rejecting the Entry No. 3005 by the Mamlatdar. It
was further submitted that respondent No.6 purchased the land
in the year 1987 prior in point of time than the petitioner and
therefore, the Entry No. 3005, passed in the year 2011
mutating the sale transaction, was rightly certified by the
Deputy Collector.
9. Learned AGP Mr. Chintan Dave submitted that no interference
is required to be made in the impugned orders passed by the
authorities below as the same are based on the concurrent
findings of fact recorded by the three authorities. It was further
submitted that the Collector and SSRD have considered in
detail the findings given by the Deputy Collector on the basis
of revenue records after giving an opportunity of hearing to the
petitioner as well as the respondent No.6. It was also submitted
C/SCA/7251/2015 JUDGMENT
that the Deputy Collector has remanded the matter back to the
Mamlatdar so far as Entry Nos. 1836 and 2642 are concerned
and if the petitioner has any grievance, the same can be raised
before the Mamlatdar in the remand proceedings.
10. Having heard learned advocate for the respective parties
and having gone through the material on record, it emerges
that originally, the land admeasuring 16Acres and 4 Gunthas
of Survey No. 365 was of the ownership of late Zala Bhurubha
Anopsinh and after his demise the land was inherited by his
legal heirs who sold the land to the petitioner as well as
respondent No.6 by executing the sale deed in the years 1992
and 1987 respectively. It appears that there is anomaly with
regard to measurement of the land referred to in the sale deed
in favour of the petitioner and accordingly, the Entry No. 3005
passed on 27.09.2011 in favour of respondent No.6 was not
certified. Respondent No.6 therefore, preferred RRT case
No. 9 of 2012 before the Deputy Collector and during the
course of adjudication of the appeal filed by the respondent
No.6, the Deputy Collector, considered the Entries No. 1836
and 2642 which were certified in favour of the petitioner and
one Pradhumansinh Zala. The Deputy Collector, considering
the facts on record however, certified the Entry No. 3005 dated
27.09.2011 and cancelled the Entries No. 1836 dated
19.03.1998 and No. 2642 dated 09.04.2009 which were
mutated for the transaction of sale in favour of the petitioner
and other persons.
C/SCA/7251/2015 JUDGMENT
11. Considering the submissions made by the respective
parties and the question of measurement which was raised
before the Deputy Collector, the Deputy Collector ought to
have remanded the matter back to the Mamlatdar with regard
to Entry No. 3005 dated 27.09.2011 along with Entry Nos.
1836 and 2642 so as to enable the Mamlatdar to hear all the
concerned parties and pass order with regard to the three
entries in accordance with law.
12. In view of the above facts and circumstances, the order
dated 15.04.2013 passed by the Deputy Collector is required to
be modified and for that purpose, the orders passed by the
Collector and SSRD are required to be quashed and set aside.
13. In view of the foregoing reasons, the order dated
24.12.2013 passed by the Collector and order dated
28.01.2015 passed by the SSRD are hereby quashed and set
aside and order dated 15.04.2013 passed by the Deputy
Collector is modified and the order to the effect that Entry
No. 3005 pertaining to land 6 Acres 32 Gunthas of 365 Paiki
which was certified by the Deputy Collector is hereby quashed
and set aside and the matter with regard to all the three entries
i.e. Entry no. 3005 dated 27.09.2011 and Entry No. 1836 dated
19.03.1998 and Entry No. 2642 dated 09.04.2009 are
remanded back to the Mamlatdar to decide afresh de novo
after giving an opportunity of hearing to the concerned parties
in accordance with law.
C/SCA/7251/2015 JUDGMENT
14. Such exercise shall be completed within a period of
three months from the date of receipt of this order. It is
clarified that this Court has not gone into the merits of the
matter and the matter is remanded back to the Mamlatdar to
ascertain the facts and pass necessary order in accordance with
law after giving an opportunity of hearing to the concerned
parties.
15. Rule is made absolute to the aforesaid extent. No order
as to costs.
(BHARGAV D. KARIA, J)
JYOTI V. JANI
