Gujarat High Court
Akshar Associates vs Special Secretary Revenue Deptt. ... on 22 April, 2022
Bench: A. P. Thaker
C/SCA/17881/2016 JUDGMENT DATED: 22/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17881 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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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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AKSHAR ASSOCIATES
Versus
SPECIAL SECRETARY REVENUE DEPTT. APPEALS & 9 other(s)
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Appearance:
MR MR BHATT, Senior Advocate with VIJAY H PATEL(7361) for the
Petitioner(s) No. 1
for the Respondent(s) No. 1
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 10,2,4,5,6,7,8,9
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 22/04/2022
ORAL JUDGMENT
1. By filing this petition, the petitioner has prayed to quash
and set aside order dated 2.12.2015 passed by respondent
no.1 bearing reference No.MVV/HKP/VDD/29/2015 and further
payed to quash and set aside order dated 12.2.2015 passed by
respondent no.2 in RTS/Suo-Motu/Revision/Case No.17 of 2013.
C/SCA/17881/2016 JUDGMENT DATED: 22/04/2022
2. As per the facts of the case, the Trust was original owner
of the subject land and considering the financial difficulties, it
was decided unanimously by Trustees of the Trust to make an
application before the office of Hon'ble Charity Commissioner,
Vadodara, to seek necessary permission for selling the subject
land so as to generate finances and to utilize the same for
betterment of the Trust Properties. Accordingly, the Trustees
filed an application under Section 36 of the Trust Act bearing
No. 36/38/2005 dated 24% October, 2005 before the office of
Hon'ble Charity Commissioner, Vadodara, for seeking reliefs as
more particularly prayed therein. In furtherance of the
aforesaid application and on 28 th January, 2009, the office
Hon'ble Charity Commissioner, Vadodara was pleased to direct
the Trust to give public advertisement inter alia inviting offers
from public at large for purchasing the subject land. It ls
submitted that the reserve price for subject land was fixed at
Rs.30,00,000/- (Rupees Thirty Lakhs Only) and the public at
large was called upon give their objections/offer on or before
26th February, 2009. It is stated that the aforesaid public notice
was also published in Gujarat Samachar on 30th January, 2009.
2.1 It is stated that after publication of public notice, no
objections came forward and in all 7 (seven) offers were
received by the office of Hon'ble Charity Commissioner for
purchasing the subject land. It is submitted that out of 7
(seven) offers received, a few were rejected by the office
Charity Commissioner, Vadodara, considering that the same
were in violation of the terms and conditions of public notice.
From the remaining offers, bidding process was conducted and
respondent No.3 was declared as highest bidder with an offer
of Rs. 1,00,00,000/- (Rupees One Crore Only). It is stated that
C/SCA/17881/2016 JUDGMENT DATED: 22/04/2022
vide an order dated 18" April, 2009, the office of Hon'ble
Charity Commissioner, Vadodara, was pleased to accept the
offer of Respondent No. 3 and was further pleased to direct
him to abide by the directions/conditions given under the said
order.
2.2 Pursuant to order dated 18" April, 2009, respondent No. 3
complied with all the directions/conditions mentioned therein
and accordingly, vide a registered Sale Deed bearing No. 7596
dated 24th August, 2009, Trustees of the Trust transferred/sold
the subject land in favor of Respondent No. 3. It is stated that
after the registered transfer, name of Respondent No. 3 was
mutated in the revenue records vide Mutation Entry No. 1949
on 26th August, 2009.
2.3 It is stated that the subject land being old tenure
agricultural land, Respondent No. 3 applied before Respondent
No. 2 inter alia seeking to use the same for non-agricultural
usage on 18th May, 2010. It is stated that after inviting the
details from all concerned departments and considering the
matter from all aspects, vide an order dated 25 th November,
2010, Respondent No. 2 was pleased to allow said application
of Respondent No. 3 and was further pleased to permit usage
of subject land for non-agriculture activities subject to
conditions mentioned therein. In furtherance to above,
respondent No. 3 also applied before the Town Development
Department, Municipal Corporation, Vadodara, inter alia
seeking development permission of the subject land. It is
further stated that on 19th March, 2011, concerned authority
was pleased to grant development permission to Respondent
No.3. It is stated that along with the development permission,
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the Deputy Town Development Officer, Vadodara, was also
pleased to sanction the plan submitted by Respondent No. 3.
The petitioner states that after N.A. order passed by
respondent No. 2, necessary mutation entry was recorded in
the revenue records, whereby usage of land from agriculture
to non-agriculture was duly mutated vide Mutation Entry No.
2081 dated 12th January, 2012 and was certified.
2.4 It is stated that somewhere in December, 2011, the
petitioner approached respondent No. 3 and sought to
purchase the subject land with all accrued benefits therewith.
The petitioner states that pursuant to the negotiations
between parties, respondent No. 3 agreed to sell the subject
land to Petitioner along with accrued benefits therewith at an
amount of Rs.2,70,00,000/- (Rupees Two Crores Seventy Lakhs
Only). It is stated that in terms of understanding arrived
between them, the petitioner and respondent No. 3 (along with
one confirming party) entered into a Sale Deed on 16 th
December, 2011, which was registered before the concerned
authority on 30th December, 2011 bearing number 14058. It is
stated that after the registered transfer, name of petitioner
was mutated in the revenue records. In addition to the above,
the name of petitioner is also incorporated in the Property Card
maintained by the revenue authorities vide Entry No. 2048.
2.5 The petitioner states that after purchasing the subject
land, an application was made by it before the Town
Development Department, Municipal Corporation, Vadodara,
inter alia seeking development permission of the subject land.
It is stated that on 4th November, 2012, the concerned
authority was pleased to grant development permission of
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subject land in favor of petitioner herein. At the request of
petitioner herein, such permission was extended by the
concerned authority on 3 May, 2013.
2.6 It is stated that after necessary development permission
granted by the competent authority, petitioner constructed
various residential buildings and in total 228 flats on the
subject land. It is also stated that after construction of
residential buildings/ 228 flats, necessary building usage
permission was also procured from the competent authority for
the same. The Petitioner states that in furtherance of the
building usage permission, the petitioner has already sold
approximately 150 flats to various purchasers through
registered Sale Deeds.
2.7 The petitioner states that on 6th May, 2013, respondent
No. 2 issued a show cause notice in the Revision Case to the
parties herein under Rule 108 (6) of the Rules inter alia
seeking to revise Mutation Entries No. (i) 1580 dated 24 th
September, 2002; (ii) 1614 dated 17th September, 2003; (iii)
1949 dated 26th August, 2009 ; and (iv) 2048 dated 10 th
February, 2012 in City Survey No. 687 concerning the subject
land. It is stated that the notice dated 6th May, 2013 was issued
by Respondent No. 2 under a complete mistaken belief and
error of fact that the subject land was sold/transferred/
conveyed by persons other than Trustees of the Trust etc.
2.8 It is stated that immediately upon receipt of
aforementioned notice, petitioner submitted its written
response to the same on 5th June, 2013 and informed
Respondent No. 2 that the subject land was sold/transferred/
C/SCA/17881/2016 JUDGMENT DATED: 22/04/2022
conveyed by Trustees of the Trust in favor of respondent No. 3
after following due process of law. It was also informed that
pursuant to such transfer, respondent No. 2 vide its N.A. Order
(25th November, 2010) was pleased to change the usage of
subject land from agriculture to non-agriculture and thereafter,
various residential buildings have been constructed on the
same. The petitioner also informed respondent No.2 that after
procuring building usage permission, approximately 150 flats
have been sold to various third parties.
2.9 The petitioner states that despite aforementioned
submissions made on its behalf, Respondent No. 2 vide its
order dated 12th February, 2015 was pleased to recall the
Mutation Entries and was further pleased to opine that the N.A.
Order (25th November, 2010) is required to be sent to
Respondent No. 1 for revision. In furtherance of its order dated
12th February, 2015, vide its order dated 18 th February, 2015,
the Respondent No. 2 was pleased to suspend the N.A. Order
and was further pleased to direct that no construction activity
should continue on the subject land. Respondent No. 2 also
directed parties not to enter into any sale transactions vis-a-vis
the remaining flats constructed on the subject land.
2.10 It is stated that being aggrieved and dissatisfied by the
order passed by respondent No.2, the petitioner approached
this Hon'ble Court by preferring a Writ Petition being Special
Civil Application No. 3865 of 2015 infer alia seeking reliefs as
more particularly prayed therein. It is stated that this Hon'ble
Court vide its order dated 9 th March, 2015, was pleased to
allow the petitioner to approach Respondent No.1 by preferring
a Revision Petition under Section 211 of the Gujarat Land
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Revenue Code, 1879 and was further pleased to direct
Respondent No. 1 to consider the Revision Application on
merits. In addition to the above, this Hon'ble Court was also
pleased to direct Respondent No. 1 to consider granting
interim reliefs on an application filed by petitioner within a
period of 7 (seven) days from the date of filing, after hearing
all the parties.
2.11 In view of the aforesaid facts and circumstances, the
petitioner preferred Revision Petition before the Respondent
No.1 to quash and set aside order passed by the Respondent
No.2. The Petitioner also filed Interim Application so as to seek
stay of the effect, operation and implementation of the order
passed by respondent no.2, pending the admission, hearing
and final disposal of the Revision Application. The petitioner
states that on 16th April, 2015, respondent No. 1 passed order
inter alia bearing reference number No. MVV/HKP/VDD/29/2015
pursuant to challenge by the Petitioner to the Order of
Respondent No. 2 dated 12% February, 2015, whereby the
Mutation Entries have been cancelled. It is stated that
Respondent No. 1, while keeping the main matter for hearing
on 19th May, 2015, refused to grant necessary interim reliefs,
as prayed for by the Petitioner, despite explicitly observing
that a prima facie case existed in favor of the petitioner.
2.12 It is stated that respondent No.1 also failed to appreciate
that failure to grant interim reliefs by way of stay of against
operation of the orders passed by Respondent No. 2 would
cause grave prejudice to the petitioner and also to those bona
fide third parties, whose rights have been settled pursuant to
their purchasing the flats constructed on the subject land.
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2.13 Being aggrieved and dissatisfied by the aforesaid orders
passed by Respondent No. 1 on 16" April, 2015, petitioner was
constrained to once again approach this Hon'ble Court by
preferring a Special Civil Application being SCA No. 7216 of
2015. It is stated that by the time SCA No. 7216 of 2015 was
taken up for admission, somewhere in July, 2015, hearing
before the Respondent No. 1 in Revision Petitions concluded
and the same were kept for passing orders. However, in a
complete lackadaisical approach, Respondent No. 1 delayed
the process of passing final order and accordingly, the
aforesaid aspect was brought to the notice of this Hon'ble
Court in the aforesaid Special Civil Application. It is stated that
upon intervention of this Hon'ble Court, it was intimated by
Respondent No. 1 that final order in the Revision Petitions shall
be passed on or before 15th October 2015. The petitioner
states that pursuant to the aforesaid assurance given by
respondent No. 1, this Hon'ble Court was pleased to observe
the same in its order dated 29 th September, 2015, and was
further pleased to allow the petitioner to withdraw said Special
Civil Application with liberty to raise all the contentions.
2.14 The petitioner states that even after such specific
assurance given by respondent No. 1, no order(s) was/were
passed on or before 15th October, 2015, thereby delaying the
process further. It is stated that even though Respondent No. 1
was aware of the situation whereby legitimate and bona fide
rights of petitioner and other third parties were at stake, the
impugned orders were pronounced only in the month of
December, 2015, i.e. after a period of approximately 2 (two)
months.
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2.15 It is stated that being aggrieved and dissatisfied by order
dated 18th December, 2015 passed in Revision Petition No. 6
of 2015 and order dated 2 nd December, 2015 passed in
Revision Petition No. 29 of 2015, petitioner preferred a Special
Civil Application being SCA No. 1109 of 2016 before this
Hon'ble Court. However, since the said Special Civil Application
was challenging two (2) separate Orders passed by
Respondent No. 1, the petitioner is seeking to prefer two (2)
separate Petitions infer alia challenging the aforesaid orders.
The Petitioner craves leave of this Hon'ble Court to allow it to
withdraw the said petition and continue the cause in the
present petition with a view to seek appropriate
Writ/Order/Direction from this Court. In view of this, petitioner
has filed present petition.
3. Heard learned Senior Counsel Mr.M.R.Bhatt appearing
with learned advocate Mr.Vijay Patel for the petitioner and
learned AGP Mr.Nikunj Kanara for the respondent-State.
4. Learned Senior Counsel, Mr.M.R.Bhatt for the petitioner
has submitted that respondent No. 1 ought to have
appreciated that after considerable lapse of time and after
third parties having inculcated their bonafide interest over the
subject land, respondent No. 2 was not justified in exercising
powers under Rule 108 (6) of Gujarat Land Revenue Rules,
1972. He also submitted that respondent No.1 ought to have
appreciated that the petitioner, after obtaining the necessary
development permission from competent authority,
constructed various residential buildings and in total 228 flats
on the subject land. Furthermore, it was after construction of
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residential buildings/228 flats and sale of 150 flats to various
purchasers through registered Sale Deeds, that the said orders
by Respondent No. 2 came to be passed. He submitted that
respondent No.1 ought to have appreciated that the petitioner
has acted as per law.
4.1 He also submitted that respondent No. 1 ought to have
appreciated that under Rule 108 (6) of the Rules while deciding
Mutation matters in RTS proceedings or deciding revision
under Section 211 of the Gujarat Land Revenue Code, revenue
authorities cannot undertake the exercise to determine validity
of the sale transaction. He further submitted that respondent
No. 1 ought to have appreciated that exercise of purported
powers by Respondent No. 2 was belated and in complete
violation of guidelines provided by the Hon'ble Supreme Court
of India and this Hon'ble Court. He further submitted that
respondent No. 1 ought to have appreciated that while partly
allowing the Revision Petitions, it could not have directed
respondent No. 2 to re-consider the N.A. Order in terms of the
directions given under the order dated 2 nd December, 2015. He
submitted that respondent No. 1 erred by not appreciating that
such direction to respondent No. 2 to re-consider its own order
in terms of the order dated 24 th December, 2015, is ex-facie in
contravention of the settled legal principles.
4.2 Mr.Bhatt further submitted that respondent No.1 ought to
have appreciated that respondent No. 3 purchased the subject
land from Trustees of the Trust pursuant to the order(s) passed
by office of Charity Commissioner, Vadodara, in a proceeding
initiated under Section 36 of the Trust Act. He submitted that
respondent No. 2 erred by Ignoring that the Sale Deed in favor
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of Respondent No. 3 has been executed by Trustees of the
Trust and the same was recorded in the revenue records. He
further submitted that respondent No. 1 ought to have
appreciated that after affirming the Mutation Entries in favor of
petitioner and respondent No. 3 there was no scope for
initiating a further inquiry into the legality and validity of title
of petitioner with regard to subject land. In view of above, he
has prayed to allow present petition.
5. Learned AGP, Mr.Kanara has vehemently submitted that
the orders of the revenue authorities are just and proper. He
submitted that learned SSRD has remanded the matter back
and has issued only direction and, therefore, the petition needs
to be rejected on this ground alone. He has further submitted
that heirship entry has been mutated in the names of heirs of
deceased Pujari. According to the legal provisions, no such
entry ought to have been made. He has also submitted that
land in question could not have been sold as it was
Devsthanam property. He has submitted that learned Collector
has not committed any mistake in passing the impugned order.
He has prayed to dismiss present petition. He has relied upon
the decision in the case of Heirs of Haji Ismail Abdul
Raheman Dadi v. Ramsing M. Baria and Others reported
in 2002 (2) GLH (U.J.) 5, wherein it was observed as under:-
"3. In above view of the matter, I am of the opinion
that the present petition is wholly misconceived. What
was the subject matter of the proceedings was the
relevant revenue entries, which in effect have been
upheld. However, while doing so, the concerned
authority has observed that the transfer in favour of Haji
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Ismail Abdul Raheman was made in contravention of
Sections 63 and 2(6) of the Tenancy Act and the
concerned authority (i.e. the Mamlatdar, Devgadh Baria)
should initiate the proceedings for such contravention.
4. Be it noted that it is merely a direction to the
concerned authority to initiate proceedings. No such
proceedings have been initiated as yet. No cause of
action, therefore, can be said to have arisen. In the event
such proceedings are initiated by the concerned
authority, the petitioners shall have an opportunity of
defence, and if any order adverse to the petitioners is
made, the same can be challenged further. However, in
the present proceedings no order adverse to the
petitioners has been made either under the Code or
under the Tenancy Act. Since, no order adverse to the
petitioners has been made, the above referred judgment
shall have no applicability. The petitioners, therefore, are
not entitled to the reliefs prayed for."
6. Having considered the submissions made on behalf of
both the sides coupled with the material placed on record, it
appears that concerned Trust was original owner of the land in
question. It also appears from record that the Trust has filed an
application under Section 36 of the Bombay Public Trusts Act
bearing no.36/38/2005 dated 24.10.2005 before the office of
Charity Commissioner, Vadodara, seeking permission for
selling the subject land so as to generate finances and to
utilize the same for betterment of the trust properties. It also
appears that the Charity Commissioner vide order dated
28.1.2009 pleased to direct the Trust to issue public
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advertisement inter alia inviting the offers from the public at
large for purchasing the subject land and the reserve price was
fixed at Rs.30 Lacs only. It appears that public notice was duly
issued and no objections were raised and in all seven offers
were received by the office of the Charity Commissioner, out of
which bidding process was conducted and respondent no.3
was declared highest bidder with an offer of Rs.1 Crore. The
said offer came to be accepted by the Charity Commissioner
vide order dated 18.4.2009. It also emerges from record that
accordingly registered Sale Deed bearing No.7596 dated
24.8.2009 came to be executed between the trustees of the
Trust and respondent no.3 and revenue entry was mutated
vide entry no.1949 of 26.8.2009 and entry was also made in
Index-2. It also emerges that thereafter respondent no.3
applied for NA permission on 18th May 2010. It also emerges
that respondent no.2, after due procedure, allowed the
application of respondent no.3 for NA permission subject to
conditions. It also emerges from record that thereafter
respondent no.3 has also applied to the Town Planning
Development Department of Municipal Corporation of
Vadodara for necessary permission, which was ultimately
granted by the department.
7. It also reveals from record that necessary mutation
entries were recorded vide entry no.2081 dated 12.1.2012.
Thereafter, land came to be purchased by present petitioner
through registered Sale Deed and name of petitioner was
mutated in the revenue record as well as in property card vide
entry no.2048. It also reveals that after purchase of land, the
petitioner has made application before Town Planning
Department, Municipal Corporation, Vadodara, seeking
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development permission for the subject land, which came to
be granted. It further emerges that flats were constructed on
the subject land and necessary usage permission was also
procured by the petitioner from the authority.
8. It appears that on 6th May 2013, respondent no.2 issued
show cause notice in the revision case to the authorities under
Rule 108 (6) of the Rules to revise various mutation entries on
the belief that transfer of the land has been made by persons
other than trustees of the Trust. On perusal of the impugned
order of the Collector, it appears that the Collector has
eventually set aside the order of the Charity Commissioner
granting permission of sale of trust property. It appears that
entire exercise of granting permission by the Charity
Commissioner was of the year 2009 and the revenue authority
has taken action of suo motu revision in the year 2013. It also
reveals that, in the said proceedings, Trust was never joined.
Admittedly, the Collector was exercising power under the Land
Revenue Code. He has no authority to exercise power under
the Bombay Public Trusts Act against the order passed by the
Charity Commissioner. It is well settled principle of law that
while exercising power under RTS proceedings, the revenue
authority cannot exercise powers under any other Act nor it
can decide the title of the property. Now, admittedly in this
case, trustees of the Trust have applied for selling of the trust
property and, in such proceedings, the Charity Commissioner
has directed to issue public notice and after inviting offers from
public at large, auction has been made and thereafter sale was
confirmed by the Charity Commissioner. Therefore, the very
base of passing the impugned order by the Collector that the
trust property has been sold by persons other than the
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trustees is devoid of merits. It also appears that even at the
time of issuance of notice, no notice was issued to the Trust
nor to any persons, who have their interest in the flats
constructed over the land by the petitioner.
9. It is also well settled that if any person is aggrieved by
the order of the Charity Commissioner then recourse available
to such persons is under the provisions of the Gujarat Public
Trusts Act. In this case, admittedly no proceeding under the
Gujarat Public Trusts Act has been initiated by the revenue
authority. By setting aside revenue entry, learned Collector
cannot set at naught the Sale Deed executed by the trustees
as per the order of the Charity Commissioner in favour of
respondent no.3 and the petitioner. At the same time,
mutation entry was made in the revenue record since 2009
and the suo motu revision has been initiated in the year 2003.
Thus, there is no sufficient reason to initiate proceedings after
four years of mutation entry of the registered Sale Deed made
on the basis of the sale confirmed by the Charity
Commissioner. Thus, entire exercise undertaken by the
revenue authority is clearly beyond reasonable period of time.
Thus, on facts as well as on law, the impugned order of the
Collector as also order of learned SSRD are not sustainable in
the eyes of law.
10. In view of above, present petition deserves to be allowed.
Accordingly, present petition is allowed. The impugned order
dated 2.12.2015 passed by respondent no.1 bearing reference
No.MVV/HKP/VDD/29/2015 and another order dated 12.2.2015
passed by respondent no.2 in RTS/Suo-Motu/Revision/Case
No.17 of 2013 are quashed and set aside. Rule is made
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absolute accordingly. No order as to costs. Direct service is
permitted.
Sd/-
(DR. A. P. THAKER, J)
R.S. MALEK
