Rajeshbhai Ravjibhai Patel vs State Of Gujarat
2021 Latest Caselaw 15122 Guj

     C/SCA/7289/2019                                  JUDGMENT DATED: 27/09/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7289 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                            Sd/­

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1     Whether Reporters of Local Papers may be allowed to see              YES
      the judgment ?

2     To be referred to the Reporter or not ?                              YES

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

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

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                        RAJESHBHAI RAVJIBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR VIKRAM J THAKOR(2221) for the Petitioner(s) No. 1,2
MS. NISHA THAKORE, AGP for the Respondent(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 7,8
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4,5,6
SHREYPRATAP S SINGH(9297) for the Respondent(s) No. 7,8
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    CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 27/09/2021

                               ORAL JUDGMENT

1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent­state, learned Advocate, Mr. S.P. Majmudar

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waives service of rule on behalf of the respondent Nos. 7 and 8.

2. This petition under Article­226 of the Constitution of India is filed with following prayers:

"A) That Your Lordships may be pleased to admit and allow this petition.

B) That Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated. 29.9.2017 passed by learned Special Secretary in Revision Application MVV/HKP/AMD/100/13 at Annexure­A, Order passed by Mamlatdar, Dascroi dated 19.3.2010 in RTS Dispute Case No.36 of 2010 at Annexure­J, Order passed by Dy. Collector dated 16.3.2012 in RTS Appeal case no.794/2011 at Annexure­K and order passed by learned Collector, Ahmedabad in Revision Application No.86 of 2012 at Annexure­L and be pleased to order to certify the disputed entry no.5431 dated 5.11.2009 and mutate the name of the petitioners in the revenue record of the subject land, that is, 6779 sq. meters of Block No. 339 (New Block No.387).

C) Pending admission hearing and final disposal of this petition, by way of interim relief, your Lordships may be pleased to stay the operation, implementation and execution of the impugned order dated 29.9.2017 passed by learned Special Secretary in Revision Appln. MVV/HKP/AMD/100/13 at Annexure­A, Order passed by Mamlatdar, Dascroi dated 19.3.2010 in RTS Dispute Case No.36 of 2010 at Annexete­J, Order passed by Dy. Collector dated 16.3.2012 in RTS Appeal case no.794/2011 at Anhexure­K and order passed by learned Collector, Ahmedabad in Revision Application No.86 of 2012 at Annexure­L and be pleased to direct the respondents not to sell, transfer, or alienate or to make any change in the revenue record of the subject land.

D) Grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice."

3. It is the case where the Mutation Entries on the basis of Power of Attorney and Sale­deed in favour of the petitioners was canceled on the ground of the objections taken by the respondent Nos. 7 and 8.

4. Learned Advocate for the petitioners submitted that all the Authorities below have appreciated the fact that entry was based on the registered Sale­deed executed by the respondent Nos.7 and 8 through their Power

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of Attorney holder and therefore, while such Power of Attorney and the registered Sale­deed are continued to be valid document, the Authorities are required to act upon it. Moreover, the respondent Nos.7 and 8 have not challenged the registered Sale­deed in any Civil proceedings and therefore, there is no order of Court to set aside the Power of Attorney as well as Sale­deed.

5. Learned Advocate for the petitioners submitted that the Revenue Authorities have exceeded their jurisdiction in considering the objections raised by the respondent Nos.1 and 7 that the Power of Attorney is not a genuine Power of Attorney and was canceled and therefore, the Sale­deed based on such canceled Power of Attorney, cannot be acted upon. However, in absence of any legal pronouncement of canceling the irrevocable Power of Attorney, the Revenue Authorities were legally bound to act upon the documents namely the registered Sale­deed by the Power of Attorney holder. While doing so, the Revenue Authorities have acted like Civil Court and giving effect of setting aside the Sale­deed, which only Civil Court can do.

6. Learned Advocate for the petitioners has taken this Court through the chronology of the event to indicate that father of the petitioners had paid the consideration to the father of the respondent Nos.7 and 8. This position even after death of the father was accepted by the respondent Nos.7 and 8, but now with the increase in value of the land, the respondent No.7 and 8 have taken U­turn and raised revenue disputes.

7. It is submitted that deliberately the respondent Nos.7 and 8 have not resorted to any Civil proceedings to get the Power of Attorney and the registered Sale­deed canceled, by filing appropriate proceedings before the Civil Court, but instead of, had resorted to revenue proceedings as it was more suitable for them to do so. It is submitted that the petitioners had instituted the Civil Suit, which later on was dismissed for want of prosecution, but there also, the respondent Nos.7 and 8 have not come forward to take up a defence that their father or they themselves were

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not party to the documents in question.

8. As against this, learned AGP submitted that the Authorities have consistently given finding of the documents not sufficient to act on making mutation entries. Moreover, Civil Suit was filed by the petitioners themselves and had failed to get any injunction order and therefore, if any orders are passed in the Civil Court, then the Revenue proceedings will be subject to orders passed by the Civil Court and therefore, the Authorities were right in sustaining the objections raised by the respondent Nos.7 and 8.

9. Learned Advocate for the respondent Nos.7 and 8 submitted that as per sale deed, the Petitioner's father was to pay some remainder of the consideration to the Father of the Respondents. On the demise of the father of the Petitioner, it was agreed upon by the Petitioners and the Respondents that the remainder of the sum would be paid via a new sale deed and for the same a Power of Attorney to conclude the was to be drawn up which later vide Notice of Cancellation of Power of Attorney dated 27/03/2008, the said Power of Attorney made in favour of the Petitioner No. 2 stood canceled. The same was also served upon the Petitioners and received by them. The contention stating that the Private Respondents had received full consideration is false and has no cogent reason supplied to it or any evidence for the same. The Notice of Cancellation of Power of Attorney dated 27­03­2008 whereby the said Power of Attorney made in favour of the Petitioner No.2 stood vitiated, the discrepancies in the Sale Deed and the Entry No.5431 vis­a­vis the area of the subject land to be mutated. The petitioners already had filed a Regular Civil Suit No.351 of 2008 which came to be rejected on account of the default on part of the petitioners.

10. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the dispute pertains to the land bearing Block No.339 (New Block No.387) of Village­ Bhuvaladi, Taluka­Dascroi.

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11. The aforesaid land was original Survey No.250/2 ad­measuring 3845 square meters and Survey No.251/1 ad­measuring 2934 square meters, totaling 6779 square meters running in the name of the father of the respondent No.8 and Grand­father of the respondent No.7. Pursuant to the amalgamation under the provision of the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, Block No.339 ad­ measuring 10402 square meters was constituted which consisted of Old Survey No.250/2, 251/1 and 256/1 of which Survey No.250/2 and 251/1 were of the ancestors of the respondent No.7 and 8. Out of 10402 square meters of Block No.339, 6779 square meters was now renumbered as Block No.387 ad­measuring 6779 square meters. Therefore, Block No. in question would be Block No.387 of Village­ Bhuvaladi.

12. It appears that the Agreement to Sale was executed on 02­05­1961 in favour of one Ravajibhai Talsibhai Patel, father of the petitioners on the payment of consideration of Rs.790/­. It is stated that possession was also handed over in the year 1961. It is the case of the petitioners that as father of the respondent No.8 had expired to confirm the original sale transaction, another Sale Agreement dated 19­10­2004 and irrevocable Power of Attorney, both dated 19­10­2004 were executed by the respondent No.7 and 8 in favour of the petitioner No.2 and thereafter on the basis of Power of Attorney, the petitioner No.2 executed Sale­deed in favour of the petitioner No.1.

13. The Court observes that the Regular Civil Suit No.351 of 2008 was filed by the petitioners before the Civil Judge, Ahmedabad (Rural) on 12­05­ 2008 seeking decree of permanent injunction and thereafter, the petitioner No.2 on the basis of Power of Attorney executed the registered Sale­deed on 14­09­2009 in favour of the petitioner No.1. On the basis of the aforesaid registered Sale­deed, Entry No.5431 was posted in the Revenue record on 05­11­2009. It is pertinent to note that the petitioner No.1 and petitioner No.2 are real brothers.

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14. It is also pertinent to note that the Authorities have taken into consideration the fact that Power of Attorney of 2004 was canceled and that the Civil Suit was filed and pending. Therefore, the Mamlatdar, Taluka­Dascroi, vide order dated 19th March, 2010 has not certified the Entry No.5431. Moreover, the Mamlatdar has also considered the fact that the Power of Attorney was restricted to limited portion of land ad­ measuring 6779 square meters, whereas the Sale­deed is pertaining to entire land of new Block No.339 ad­measuring 10927 square meters. The Deputy Collector also observes in the Order dated 16 th March, 2012, while rejecting the RTS Appeal Case No.794 of 2011 of the petitioners on the ground that the Civil Suit is filed and the application for injunction was rejected on 07­10­2011 and that there is no final order in the Civil Suit making revenue proceedings subject to the outcome of the Civil case. The Collector in Revision Application No.86 of 2012 rejected revision by order dated 11­07­2013, wherein it is observed that for the first time by Revenue Authorities that the Civil Suit filed by the petitioners has been dismissed for default on 18­04­ 2012, moreover, has also proceeded to hold that the said transaction has resulted into fragmentation and therefore, violation of Section­8 of the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act. It was also observed that in the Revenue record, name of Co­ operative Society is entered in the second right and therefore, has not interfered in the orders of the Authorities.

15. The Revenue Secretary has also rejected Revision Application No.MVV/HKP/AMD/100/2013 on the ground that Civil Suit has been dismissed and that outcome in any Civil proceedings would govern the revenue proceedings. It appears from the chronology that Agreement to Sale was executed in the year 1961 between the ancestors of petitioners and the respondent No.7, which was confirmed in the year 2004 by execution of Power of Attorney and Agreement to Sale by the respondent No.7 and 8, in favour of the petitioner No.2. Thereafter, as

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per say of the respondent No.7 and 8, certain conditions were to be fulfilled on the part of the petitioners by paying remainder of the consideration and on non­payment of such considerations, by Notice dated 27­03­2008, the Power of Attorney was canceled.

16. It will be pertinent to observe that in the meantime, Civil Suit No.351 of 2008 came to be filed and pending the Civil Suit, the petitioner No.2 executes the Sale­deed on the strength of the Power of Attorney in favour of the petitioner No.1­brother in the year 2009. Meaning thereby, the Power of Attorney executed in the year 2004, Civil Suit filed in the year 2008 and pending the Civil Suit, execution of Sale­deed on the basis of Power of Attorney of 2004, in the year 2009 and thereafter, such Civil Suit is not persuaded by the petitioners and Civil Suit stands dismissed for default. This chronology in the opinion of the Court would act against the petitioners. However, case of the petitioners of petitioners having acted upon the power of attorney and the Mutation Entry based on registered Sale­deed through the Power of Attorney continued to exist as the documents till such documents are declared by the Court of appropriate jurisdiction to be null and void or canceled, where the respondents have not taken any action, also deserves consideration.

17. However, in view of the fact that it was the petitioners who had instituted Civil Suit with some legal background and sought for appropriate relief and the petitioners on their own action not bringing the Civil Suit to a logical conclusion, will also has to be point of consideration. The Court also observes that it was at the stage of Revision Application preferred by the petitioners before the Collector against separate orders of Mamlatdar and thereafter, the Deputy Collector, the principle of fragmentation was introduced to uphold the order of the Mamlatdar not certifying the Entry No.5431 and therefore, apparently, the Authorities have traveled from proceedings under the Land Revenue Code to proceedings under the Gujarat Prevention of

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Fragmentation and Consolidation of Holdings Act and considering the alleged breach of Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, as one of the point to uphold the orders of the Revenue Authorities, where in the opinion of the Court, the petitioners were not put to proper notice under the provision of the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act.

18. In view of the aforesaid discussion, the Court deems that this is a proper case for remanding the case back to the Authorities at the stage of Collector to consider the case of the petitioners afresh in light of the observations made herein above and without being influenced by the orders passed by the Authorities; namely the order dated 29.9.2017 passed by Special Secretary in Revision Application No. MVV/HKP/AMD/100/2013, Order passed by Mamlatdar, Dascroi dated 19.3.2010 in RTS Dispute Case No.36 of 2010, Order passed by Dy. Collector dated 16.3.2012 in RTS Appeal case no.794/2011 and order passed by Collector, Ahmedabad dated 11­07­2013 in Revision Application No.86 of 2012.

19. In view of the aforesaid, the Collector is directed to decide the remand proceedings within a period of six months. Both the parties to cooperate with the proceedings before the Collector and not to seek unnecessary adjournments.

20. With the aforesaid observations, the petition stands allowed as aforesaid. Rule is made absolute to the aforesaid extent with no order as to costs.

Direct service is permitted.

Sd/­ (A.Y. KOGJE, J) PARESH SOMPURA