Anilbhai Virubhai Patel vs State Of Gujarat
2021 Latest Caselaw 16000 Guj

     C/SCA/9134/2016                                 JUDGMENT DATED: 11/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9134 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.G.URAIZEE

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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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                           ANILBHAI VIRUBHAI PATEL
                                    Versus
                         STATE OF GUJARAT & 4 other(s)
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Appearance:
MR MEHULSHARAD SHAH(773) for the Petitioner(s) No. 1
DECEASED LITIGANT(100) for the Respondent(s) No. 5
DEV D PATEL(8264) for the Respondent(s) No. 5.1
GOVERNMENT PLEADER(1) for the Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE

                                Date : 11/10/2021

                                ORAL JUDGMENT

1. In this petition under Article 226 of the Constitution of India, the petitioner has made the following substantive prayers.

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"8(A) to issue a writ of certiorari or any other appropriate writ, order or direction, quashing and setting aside the order dated 29.1.2016 (dispatched on 31.3.2016) passed by the District Collector, Ahmedabad in Revision No.6/2015 as well as the order passed by the City Deputy Collector (West), Ahmedabad dated 18.7.2012 in RTS Appeal No.137/2011 (old No.31/2010) and be further pleased to direct the respondent authorities to certify Entry No.5304 mutated in the revenue record on the basis of the registered Gift Deed;

(B) to issue a writ of certiorari or any other appropriate writ, order or direction, declaring that the direction issued by the District Collector to initiate proceedings for breach of condition is beyond the scope of jurisdiction and the issue involved in the present petition is regarding certification of revenue entry mutated on the basis of gift deed;

(C) pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the execution, operation and implementation of the order dated 29.1.2016 passed by the District Collector, Ahmedabad in Revision

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No.6/2016;

(D) pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent authorities to maintain status quo and to certify Entry No.5304 mutated in the revenue record on the basis of the registered gift deed;"

2. The facts in brief giving rise to this petition are that land bearing survey No.176 of Vastrapur, Ahmedabad city was originally belonged to Manaji Nathaji, Chhanaji Nathaji and other brothers. The said land was converted to old tenure land from new tenure land on 26.3.1972 on the basis of the application made by the said land owners. Revenue entry No.1979 was mutated in the revenue record on 4.7.1972 to the effect that this conversion of the land is from new tenure to old tenure. The land owners thereafter applied for development permission in respect of the land bearing survey No.176/2/2 which was granted by the competent authority on 13.3.1986.

3. The land owners, thereafter, executed the registered sale deed dated 24.12.1996 in favour of Rekhaben Jayantibhai Patel who is respondent No.5 herein in respect of land bearing survey No.176/2/2 (subject land). Revenue entry No.4493 came to be mutated in the revenue record on 8.1.1997 on the basis of the sale deed after following procedure prescribed under section 135-D of the

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Land Revenue Code.

4. It is pleaded by the petitioner that he has executed gift deed in favour of Rekhaben jayantibhai Patel in respect of the land bearing survey No.176/2/4 and Rekhaben Jayantibhai Patel (respondent No.5 herein) in turn executed registered gift deed in respect of the subject land in favour of the present petitioner on 24.9.2009 as per the family arrangement. Revenue entry No.5304 came to be mutated in the revenue record on 25.10.2010 in favour of the petitioner in respect of the gift deed. The notice under section 135-D of the Code came to be issued by the City Mamlatdar (respondent No.4). No objections were received to this notice. However, without affording opportunity of hearing and without examining the contents of the gift deed, respondent No.4 cancelled the mutation entry on the ground that the petitioner has not produced any evidence to show that he is an agriculturist and his relationship with respondent No.5.

5. The petitioner, therefore, preferred Appeal No.137/2011 (old No.31/2010) before the City Deputy Collector, West, Ahmedabad (respondent No.3) under section 105(8) of the Land Revenue Rules to challenge the order of respondent No.4 cancelling mutation entry. The respondent No.3 examined the evidence on record and recorded conclusion that the petitioner is an agriculturist and is relative of respondent No.5 and therefore, reasons assigned by respondent No.4 while certifying entry were not correct. After referring to revenue entry No.1979 respondent

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No.3 recorded conclusion that as there is construction in the subject land and no NA permission is obtained, the Government has suffered the loss of premium and therefore cancellation of entry No.5304 which was mutated on the basis of the registered gift deed does not warrant any interference.

6. The petitioner thereafter assailed the decision of respondent No.3 by preferring Revision Application No.6 of 2015 before the District Collector, Ahmedabad (respondent No.2).

7. The petitioner contended in this petition that office of respondent No.2 used to send intimation of adjournment by written notice to learned advocate of the petitioner. However, no notice intimating date of hearing was served either on the petitioner or his advocate for the date on which final hearing of the revision application took place. The respondent No.2, therefore, without affording any opportunity of hearing dismissed the revision application on 29.1.2016 and while confirming the order passed by respondent No.3 also directed to initiate the proceedings for breach of condition against the petitioner for having constructed one room without obtaining necessary permission and without paying premium to the government.

8. The petitioner being aggrieved by the impugned order passed by respondent Nos.4, 3 and 2 has preferred the present petition.

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9. The respondent authorities have resisted this petition by filing the affidavit-in-reply.

10. In the affidavit-in-reply, it is essentially contended that the petitioner has preferred the present petition without availing alternative remedy of filing an appeal or revision before the appropriate authority under the Code. It is contended as under.

"6. It is submitted that by way of filing the present petition, the petitioner has straightaway approached before this Hon'ble Court. Petitioner has an alternative remedy of challenging the order dated 29.01.2016 passed by the Ld.Collector, Ahmedabad by way of filing Appeal / Revision before the appropriate authority under the Gujarat Land Revenue Code, 1879. Therefore present petition is not maintainable and same is deserved to be dismissed. It is further submitted Hon'ble Division Bench of this Hon'ble Court passed an order regarding availability of alternative remedy in Letters Patent Appeal No.1431 of 2014. A simple copy of order dated 07.01.2015 is annexed hereto and marked as "ANNEXURE-R1" to this affidavit-in-reply."

11. It is also contended in the reply that use of the subject land is without prior permission from the competent authority and therefore there is a breach of condition. It is, therefore, urged in the reply that impugned orders of the

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authorities do not warrant interference in this petition.

12. I have heard Mr.Mehul Sharad Shah, learned advocate for the petitioner and Mr.Trupesh Kathiriya, learned AGP for the respondent authorities.

13. Mr.Shah has submitted that in all the four plots which were forming part of survey No.176 were purchased by family members of the petitioner. He submits that survey No.176/2/1 was purchased by Jayantibhai Patel, survey No.176/2/2 was purchased by Rekhaben, survey No.176/2/3 was purchased by Ritaben and survey No.176/2/4 was purchased by Anilbhai patel. According to his submission, Jayantibhai who was head of the family was looking after family affairs and properties of the family. The petitioner and other family members were not therefore aware about the details of the transactions in respect of land bearing survey No.176. According to his submission, plot Nos.176/2/1 and 176/2/2 are situated in the front portion, whereas plot Nos.176/2/3 and 176/2/4 are situated on the back side. The owners of plot Nos.176/2/3 and 176/2/4 through bona fide mistake put up construction of residential house in plot Nos.176/2/1 and 176/2/2 instead of plot Nos.176/2/3 and 176/2/4 respectively. This mistake came to the notice only after the death of Jayantibhai Patel and therefore owners of Nos.176/2/3 and 176/2/4 executed gift deed in favour of owners of survey Nos.176/2/1 and 176/2/2 respectively. He submits that on the basis of this gift deed, revenue entries were mutated in the revenue record and after

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charging premium amount, the land was converted into NA use.

14. Mr.Shah relied upon the decision of this Court in the case of Jhaverbhai Savjibhai Patel Vs Kanchanben Nathubhai Patel and others, reported in 2005 (3) GLH 657 and the decision in the case of Balvantrai Ambaram Patel Vs State of Gujarat and others, reported in 2014 LawSuit (Guj) 641 submits that in all cases of claim for mutation on the basis of the registered document, the competent officer has to enter the name of the claimant owner in the revenue record. It is his further submission that subject land is now included in the Town Planning Scheme and Final Plot No.258 was given and in view of the resolution dated 2.9.2016 all agricultural lands are covered under the Town Planning Scheme are treated as NA lands. It is his further submission that though respondent No.3 has found after examining relevant record that the petitioner is agriculturist, however, on the ground of construction of one room in the subject land, he refused to certify the entry. It is his further submission that respondent No.2 has perpetuated illegality committed by respondent Nos.4 and 3 by further observing that it is breach of condition and therefore authorities below have not committed any error in not certifying revenue entry. According to his submission, the reasons assigned by the authorities cannot stand to scrutiny of the court and therefore, they need to be set aside with a direction to them to certify entry. He, therefore, urges that the petition may be

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allowed and the orders impugned may be set aside.

15. Mr.Trupesh Kathiriya, learned AGP has vehemently opposed this petition. He submits that the petition needs to be dismissed on the sole ground of availability of efficacious remedy of approaching SSRD to challenge the order passed by respondent No.2. According to his submission, this Court has admitted this petition on the basis of submission that before passing the order, respondent No.2 has not afforded any opportunity of hearing either to the petitioner or his learned advocate. According to his submission, this stand of the petitioner is found to be incorrect upon perusal of the record of respondent No.2. He, therefore, submits that the petitioner may be relegated to avail alternative remedy before the SSRD. In support of his submissions, learned AGP has relied upon the decision of this Court in the case of Dedharota Gram Panchayat and others Vs State of Gujarat and others, reported in 2017 LawSuit (Gujarat)

739.

16. In rejoinder, Mr.Shah submits that this Court has entertained the petition after considering his submissions. Mr.Shah submits that once the petition is entertained by this Court, the same should not be dismissed on the ground of alternative remedy. In support of this contention, Mr.Shah has relied upon the decision of this Court in the case of Sandeep Texturisers Pvt.Ltd and another Vs State of Gujarat and others, reported in 2013 (1) GLH 430 as well as the decision in the case of

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Sarabhai Piramal Pharmaceuticals Ltd Vs Collector and Additional Superintendent of Stamps, reported in 2013(3) GLH 679.

17. Having heard learned advocate for the petitioner and learned AGP for the respondent authorities and having perused the material on record, following undisputed facts emerge.

17.1 Subject land was forming part of survey No.176 which was divided into subplots. Upon application of the original land owners, development permission to construct residential houses was accorded by the competent authority by order dated 13.3.1986.

17.2 The respondent No.5 purchased sub-plot by registered sale deed from the original land owner on 24.12.1996. The name of respondent No.5 was mutated in the revenue record on the basis of the registered sale deed. There was family arrangement in respect of survey No.176 and accordingly, subject land had come to the share of the petitioner, whereas sub-plot 176/2/4 had come to the share of respondent No.5 herein. However, the petitioner and respondent No.5 were not aware of the fact that these respective shares had come to their respective share as family affairs were looked after by Jayantibhai Patel.

17.3 As soon as the petitioner and respondent No.5 realized that they are in occupation of plots which have not come to their shares as per the family arrangement, they executed registered gift deed in respect of the plots which

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have in fact come to their shares.

17.4 So far as plot No.176/2/4 is concerned, the same is mutated in the name of respondent No.5 herein on the basis of the registered gift deed executed in her favour by the petitioner. Revenue entry No.5304 came to be mutated in the name of the petitioner on the basis of the registered sale deed executed by respondent No.5 which came to be cancelled by respondent No.4 without affording opportunity of hearing to the petitioner on the ground that there is no evidence to show that the petitioner is agriculturist and that evidence as regards relationship between the petitioner and respondent No.5 is not produced.

17.5 The petitioner has assailed the order of respondent No.4 before respondent No.3 who though recorded finding that the petitioner is agriculturist, maintained the order of respondent No.4 regarding cancellation of entry on the ground that without obtaining NA permission, one room is constructed on the subject plot.

17.6 The order of respondent No.3 was challenged before respondent No.2 by way of revision. The respondent No.2 while hearing the revision application of the petitioner and confirming the order of respondent No.3 has further issued direction to initiate the proceedings for breach of condition as construction is put up in the subject plot without getting the land converted into old tenure land and without permission.

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18. In view of the aforesaid admitted factual scenario, the first issue which is raised by learned AGP that the petitioner has approached this Court without exhausting alternative remedy of preferring the proceedings before the SSRD is required to be considered.

19. It is essentially submitted by learned AGP that this Court has entertained this petition being prima facie impressed by the contention that respondent No.2 has not afforded any opportunity of hearing to the petitioner before passing the impugned order. After perusing the record of respondent No.2, learned AGP submits that ample opportunity was afforded to the petitioner, however, these opportunities were not availed and the petitioner was aware of the last date of hearing of the proceedings, however, none remained present and as a result, impugned order came to be passed. He, therefore, straneously urged that the petitioner should be relegated to exhaust alternative remedy. Mr.Shah, learned advocate for the petitioner could not dispute that revision before the SSRD was available. However, he submits that as the order passed by respondent No.2 is without and beyond jurisdiction and in view of the decision of this Court in the case of Sandeep Texturisers Pvt.Ltd (supra) and Sarabhai Piramal Pharmaceuticals Ltd (supra), once the petition is admitted, the party should not be relegated to alternative remedy.

20. The issue of relegating the petitioner to exhaust alternative remedy should not detain this Court any further

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in view of the decision of this Court in the case of Sarabhai Piramal Pharmaceuticals Ltd (supra) wherein reliance is placed on the decision of the Supreme Court in the case of Calcutta Discount Company Limited Vs Incometax Officer, Companies District I, Calcutta and another, reported in AIR 1961 SC 372 wherein it has been held that since the matter has been admitted, the same shall not operate as bar to entertain the petition on the ground of alternative remedy. The contention of learned AGP to dismiss the petition on the ground of availability of alternative remedy, therefore, does not stand ground.

21. So far as the main issue involved in the petition regarding mutation of entry on the basis of the registered sale deed is concerned, this Court in the case of Jhaverbhai Savjibhai Patel (supra) has observed as under.

"6. As such the issue involved in this petition is covered by the decision of this Court in case of Jayantilal Jethalal Soni v. State of Gujarat dated 28.9.2004 passed in Special Civil Application No.12547 of 2004. The relevant observations made by this Court in the aforesaid decision at paragraphs 7, 8, and 9 are as under:

"7. It appears that if a registered sale deed is executed by the holder of the land, it confers the right pertaining to the land in question in favour of the purchaser of the land and, therefore, the

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rights pertaining to the land in question in normal circumstances can be said to have been acquired over the land in question for which recording is required to be made in the revenue record. It is also well settled that the revenue entries are having value only for fiscal purpose and more particularly for the purpose of recovery of revenue and it neither confers any right or title over the property, nor does it take away the right or title in the property which otherwise cannot be available under the law. However, the question which arises for the consideration is if a sale deed is executed by the holder of the land which runs prima facie counter to the other statutory provisions of other enactment or is barred under the other enactment or it alters or disturbs the rights of the persons under the other enactment then, can the revenue authority shut its eyes by ignoring such flagrant violation of such law or if it is considered, what will be the proper course to be followed ? In case of "Evergreen Apartment Co- op. Housing Society" (1991 (1) GLR 113), this Court has expressed the view that it is not open to the revenue authority exercising power under the Code to exercise power under the other enactment and to decide in respect to the breaches which are committed under the other enactment and thereby to uncertify the entry or to

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cancel the entry made in the revenue record. In case of Janardan D. Patel v. State of Gujarat (1997 (1) GLR 50) at para 11, it has been observed as under:

"11. If any such question arises, the matter should be referred to the authority empowered to deal with under the said other enactment. For example, the validity of a transaction on the basis of Sec. 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 ("the Tenancy Act" for brief) is sought to be challenged. That question cannot be decided by revenue authorities in RTS proceedings. In such situation, the correct procedure to be followed would be to refer the matter to the authority empowered under the Tenancy Act for his decision. The necessary mutation entry may be made only after the decision of that authority under the Tenancy Act is received. It would, however, not be open to revenue authorities in RTS proceedings to decide that question."

8. Therefore, keeping in view of the aforesaid observations made by this Court in the above referred judgement, it appears that it would not be proper to hold that even if there are breaches under other enactment or such transfer is barred under the other enactment, the revenue

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authorities exercising power under Code could have ignored the same for the purpose of recording the mutation. At the same time, the authorities exercising power under the Code will have to exercise the jurisdiction within the limits of the statutory provisions of the Code. Therefore, on reconciling of both the aspects, it appears that in a case where the transfer of a land is made by registered sale deed and if the revenue authority prima facie is of the view that such transfer is either barred under the other enactment or is resulting into a breach of other enactment or is to result into adversely affecting the rights under the other enactment and consequently sale is prohibited, then in that case, the appropriate course for the revenue authority would be to record the entry for registered sale deed with the express observations that the registered sale deed is prima facie in breach of the other enactment and simultaneously refer the matter to the competent authority under the other concerned enactment of which breach is committed and the entry should be made subject to the final decision which may be taken by the competent authority under the other concerned enactment. This Court is inclined to take such view, because the one, who may be a bonafide purchaser or one who is interested to purchase the property would

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normally rely upon the revenue entry for enquiring into the title and the possession of the property. If the entry is certified on the basis of registered sale deed as it is, without recording for aforesaid qualification or clarification, the resultant effect would be that it will not be made known to the either person interested or to the other party who may act upon the revenue entry that the present transaction may be in breach of the other enactment and consequently it may result into not giving correct picture of the title or possession of the property in question in accordance with law. If the entry, on the basis of the sale deed is not at all effected, with the aforesaid qualification or without aforesaid qualification, it may also conversely mislead the public at large and also to those persons who act upon the revenue record, because there will be no recording of such transactions of registered sale deed which has the effect of conferring the right on property unless it is prohibited by the relevant statute under the other enactment or unless such sale deed is declared as null and void by the competent authority or through the process known to law. Therefore, it cannot be said that the authority exercising power under the Land Revenue Code has absolutely no jurisdiction to even prima facie consider the matter as to

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whether the breach of the other enactment is committed or not. At the most, it can be said that the authority exercising power under the code has no power to conclude as to whether the breach of the other enactment by the impugned transfer or registered sale deed is made or not.

9. In view of the above, it cannot said that the orders passed by all the authorities on the basis that the Mamlatdar has not inquired into the aforesaid three aspects namely as to whether there is any breach of the provisions of the Prevention of Fragmentation Act or the provisions of Tenancy Act, are absolutely without any basis and the orders can be maintained only to the extent that in case it is found by the Mamlatdar after remand that there are prima facie breach of the other enactment by the transfer in question, the revenue authority exercising power under the Code may refer the matter to the appropriate authority under the other enactment or may relegate the affected party to resort to appropriate proceedings under the other enactment and the entry may be considered subject to the final outcome in the proceedings under the other enactment, as observed hereinabove in earlier paragraphs."

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22. In view of the above two decisions of this Court, I am of the view that issue involved in this petition is no longer res integra and when revenue entry is sought to be mutated on the basis of the registered document, the revenue authority has no option but to mutate the entry. If breach of any other legislation or statute is noticed, merely because the entry is mutated in favour of the person, the same would not bar the authority to initiate the proceedings independently in accordance with law.

23. In view of the above, the present petition succeeds and the same is hereby allowed. The impugned orders are quashed and set aside. However, it is clarified that this order shall not preclude the competent authority from initiating proceedings in accordance with law if breach of any other legislation or statute is noticed. Rule is made absolute to the aforesaid extent. No costs.

(A.G.URAIZEE, J) H.M. PATHAN