Gujarat High Court
Legal Heirs Of Raheman Rahimbhai ... vs State Of Gujarat Thro Secretary on 30 November, 2021
Bench: A. P. Thaker
C/SCA/4164/2012 JUDGMENT DATED: 30/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4164 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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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 ?
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LEGAL HEIRS OF RAHEMAN RAHIMBHAI CHAUHAN @ BABUBHAI
CHHEL & 9 other(s)
Versus
STATE OF GUJARAT THRO SECRETARY & 4 other(s)
==========================================================
Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,10,2,3,4,5,6,7,8,9
ADVOCATE NOTICE SERVED(81) for the Respondent(s) No. 5
MS. DHWANI TRIPATHI, AGP (1) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 30/11/2021
ORAL JUDGMENT
1. By way of present petition, the petitioner has challenged
order dated 21.2.2012 passed by respondent No.1 in
Revision Application No. MVV/JMN/JND/6 of 2008, order
C/SCA/4164/2012 JUDGMENT DATED: 30/11/2021
dated 26.12.2007 passed by respondent No.2 as well as
order dated 18.3.2005 passed by respondent No.3.
2. The brief facts of the case is that land situated at Revenue
Survey No. 99 and 102, Block-C, village: Prabhaspatan,
Taluka: Veraval, District: Junagadh, was purchased by
Patani Rahim Raheman on 12.11.1947, by registered sale-
deed and possession was handed over to him. Thereafter,
the present petitioner being ancestor of Rahim Raheman is
in possession thereof. That when survey was conducted by
the City Survey Officer, no intimation was given to the
petitioner or their ancestors by the City Survey Office. The
land in question was mutated in the name of State
government without hearing the petitioner or their
ancestors or even without serving any notice at the
relevant point of time. That when petitioner went for
mutation of their entry of heirship on 28.4.1987, the same
came to be rejected by respondent No.3. That on 18.3.2005,
the mutation in the name of the State government was
challenged by the petitioner before respondent No.3,
which was rejected by the respondent No.3 on the ground
that against the promulgation entry of the State
government, the Deputy Collector cannot hear the appeal.
Thereafter, on 26.12.2007, the appeal preferred by
deceased Rehman Rahim Chauhan against the order of
respondent No.3 was rejected by the learned Collector on
the ground that since there were no claims of the land in
question and the public notice was issued in 1971 for the
same, the name of the State government has been entered
C/SCA/4164/2012 JUDGMENT DATED: 30/11/2021
on the basis of the opinion given by the respondent No.4.
The aforesaid order came to be challenged by the deceased
Rehman Rahim by preferring revision application before
respondent No.1, which also came to be rejected on
21.2.2012.
2.1 The main grievance of the petitioner is that without
affording any opportunity of being heard, and without
issuing any notice at the relevant time during the
proceedings of promulgation, the private land has been
shown to be vested in the State government which is
against the settled principles of law. It is also contended
that the sale-deed was below Rs.100/-, and according to the
provision of registration Act, 1908, it was not needed to be
registered. It is also contended that the observation by the
learned Collector that sale-deed in favour of the petitioner
has not been registered, is devoid of merits and that the
exercise undertaken by the revenue authorities in rejecting
the application of the petitioner is not in consonance with
law and the same deserves to be set-aside.
3. Heard Mr. S.P. Majmudar, learned advocate for the
petitioners and Ms. Dhwani Tripathi, learned AGP for the
respondent State.
3.1 Though respondent No.5 has been served, none has
appeared on his behalf. Though respondent No.5 has not
appeared during the course of argument, earlier he has
filed affidavit-in-reply at Page-44 wherein he has
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contended that the Suit has been filed before the Civil
Court and he has challenged the impugned sale-deed and
has also filed criminal complaint. Against that affidavit, the
petitioner has filed his rejoinder reiterating the facts
narrated in the petition and has submitted that respondent
No.5 has no locus-standi in the present proceedings.
4. Mr. S.P.Majmudar, learned advocate for the petitioners
while reiterating the facts of the petition, as mentioned
aforesaid, vehemently contended that the petitioners were
not aware of the so-called proceedings of the promulgation
in the year 1971 as no notice was served upon them. He has
also contended that the revenue authority has rejected the
application only on the basis that the sale-deed in favour of
the petitioner has not been registered. Mr. Majmudar
submitted that as per Section 72 of the Gujarat Land
Revenue Code, the Collector can sell the property for
realisation of land revenue, however, such sale would not
affect the title of the property, in case it is claimed by the
heirs at a later stage. He also submitted that the petitioners
are the purchasers of the land in question and has title to
the same. He has submitted that when this fact was
brought to the notice of the revenue authority, it is
incumbent upon their part to bring it on record the names
of the petitioners as they cannot be divested of the title to
the property essentially when there is no doubt regarding
the execution of the sale deed. He submitted that sale
deed which is for consideration below Rs.100/-, there is no
requirement of its registration. He has submitted that
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impugned orders are required to be quashed and set-aside
and the City Survey Officer is need to be directed to hear
the same and meanwhile status-quo be maintained by the
parties.
5. Ms. Dhwani Tripathi, learned AGP has submitted that the
contesting respondents has filed Civil Suit and has
challenged the alleged sale-deed before Civil Court. She has
submitted that the order passed by the revenue authorities
are in consonance with law and has submitted that as
observed in the impugned order, necessary notice of
promulgation was issued but none has appeared regarding
the land in question at the relevant time and, therefore, the
land came to be vested in the State Government. She has
submitted that the order passed by all the three authorities
is in consonance with the facts, and therefore, since there is
concurrent findings of facts, this Court cannot entertain
this petition and the same deserves deserves to be
dismissed.
6. Heard learned advocates for the parties. Considered the
material placed on record. On perusal of the impugned
orders, it appears that the rejection of the application for
mutation is solely based on the observation that the said
sale-deed relied upon by the petitioner, is not registered
one. At this juncture, it is pertinent to referred to the sale-
deed, of course which is unregistered, wherein the land
survey number is specifically mentioned along with the four
boundaries thereof. Not only that but, it is also on the
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Stamp papers of the Saurashtra State at the relevant time.
The averments regarding the sale consideration is of
Rs.95/-. At this stage Section 17 of the Registration Act is
required to be referred to wherein it is specifically provided
that the documents relating to transaction of immovable
property of consideration of less than 100/- does not
required registration. Section 17 of the Registration Act is
reproduced hereinbelow:
"Section 17: Documents of which registration is compulsory.--
(l) The following documents shall be registered, if the property to
which they relate is situate in a district in which, and if they have
been executed on or after the date on which, Act No. XVI of 1864,
or the Indian Registration Act, 1866, or the Indian Registration
Act, 1871, or the Indian Registration Act, 1877, or this Act came or
comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or
operate to create, declare, assign, limit or extinguish,
whether in present or in future, any right, title or interest,
whether vested or contingent, of the value of one hundred
rupees and upwards, to or in immovable property;
xxxx xxxx xxxx
xxxx xxxx xxxx
xxxx xxxx xxxx
Therefore, the grounds on which the application came
to be rejected is not in consonance with the law.
C/SCA/4164/2012 JUDGMENT DATED: 30/11/2021
7. It is also pertinent to note that there is no iota of evidence
produced on record by the revenue authority regarding the
genuineness as to service of notice of the promulgation, at
the relevant time, to the parties concerned. In absence of
such documentary evidence, the mere recital that general
notice was issued, cannot take place of documentary
evidence. All the authorities concerned have not taken into
consideration this very fact as well as legal aspect.
8. At this stage, the provisions of Section 72 of the Gujarat
Land Revenue Code, needs a reference, which provides as
under:
Section 72: Interstate occupancy or holding to be sold: If
an occupant who is either a Hindu, a Mahomedan, or a
Buddhist dies intestate and without known heirs, the
Collector shall dispose of his occupancy by sale, subject to
the provisions of this Act, or of any other law at the time in
force for the sale of forfeited occupancies in realization of
the land revenue, and the law at the time in force
concerning property left by Hindus, Mahomedans or
Buddhists, dying intestate and without known heirs shall
not be deemed to apply to the said occupancy but only to
the proceeds of such sale after deducting all arrears of land
revenue due by the deceased to [the [Government] and all
expenses of the said sale.
9. Thus, the aforesaid provisions provides for necessary action
which can be undertaken by the Collector in respect of the
private land. Now, in the present case, originally the land
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belongs to a private party. Therefore, , under the provisions
of Section 72 of the Gujarat Land Revenue Code, the
revenue authority cannot vest the land in question in the
State.
10. In view of the aforesaid observations, it clearly transpires
that all the authorities concerned have erred in passing the
impugned orders. Therefore, the impugned orders are
required to be quashed and set-aside. However, instead of
granting any prayer in the shape of mutation entry in the
name of the petitioners, the matter needs to be sent back
to the concerned City Survey Officer for deciding afresh in
accordance with the law.
11. In view of the above, the order dated 21.2.2012 passed by
the respondent No.1 in Revision Application No. MVV/JMN/
JND/6 of 2008, order dated 26.12.2007 passed by
respondent No.2 as well as order dated 18.3.2005 passed
by respondent No.3 are hereby quashed and set-aside. The
respondent No.4 is hereby directed to decide the
application of the petitioners afresh after providing
opportunity of being heard to all the concerned and
keeping in mind the observations made hereinabove, as
early as possible, in accordance with law. Such exercise to
be completed within a period of 4 months from the date of
receipt of the copy of this order.
Rule is made absolute to the aforesaid extent. No
order as to costs.
C/SCA/4164/2012 JUDGMENT DATED: 30/11/2021
Direct service is permitted.
In view of the above, Civil Application, if any, stands
disposed of.
(DR. A. P. THAKER, J)
SAJ GEORGE
