Thakore Jeckyben Wd/O Becharji ... vs State Of Gujarat
2022 Latest Caselaw 9950 Guj

     C/SCA/15051/2022                             JUDGMENT DATED: 09/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 15051 of 2022


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE                                     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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         THAKORE JECKYBEN WD/O BECHARJI MAGANJI THAKORE
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR PRATIK JASANI with MR KUNTAL A JOSHI(6269) for the Petitioner(s)
No. 1,2,3,4
for the Respondent(s) No. 2,3,5,6,6.1,6.2,6.2.1,6.2.2,6.2.3,6.2.4,7
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
MR MRUGEN PUROHIT with MR KUMAR H TRIVEDI(9364) for the
Respondent(s) No. 4
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 09/12/2022

                             ORAL JUDGMENT

1. This petition under Article 226 of the Constitution of India is filed challenging the legality and validity of the order dated

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23.6.2022 passed by the Special Secretary, Revenue Department, in the Revision Application No.MVV/CON/MASAN/ 1/2022. The Secretary has set-aside the order dated 27.1.2022 passed by the Mamlatdar, Mahesana, in SASU/TUKDA/BLOCK BHANG/ CASE No.1/2020, which pertains to the land bearing Block No.1204 (old Survey No.604) of village Linch, Taluka Mehsana, which is claimed by the petitioners as an ancestral land running in the name of the petitioners' family since their forefathers.

2. Learned advocate for the petitioners submitted that the land in question was falling in the area covered under Section 3 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short, 'the Fragmentation Act') and, therefore, a consolidated holding cannot be transferred or fragmented. It is argued that the transaction in favour of the respondent was without the permission and, therefore, in breach of the provisions of the Fragmentation Act.

3. Learned advocate for the petitioners submitted that as there was an undivided share of the petitioners in the land in question, there was a prohibition under law against creating of fragment or transfer without the prior permission of the competent authorities. It is further submitted that some of the family members who are having partial interest in the land in question, by overwriting the rights of the petitioners and behind their back, entered into the sale transaction and sold the land in favour of the private respondent Nos.4 and 5, which was

C/SCA/15051/2022 JUDGMENT DATED: 09/12/2022

mutated in the revenue record vide Entry Nos.4293 and 4310 in the year 1977 and 1988 respectively.

4. Learned advocate for the petitioners further submitted that the entire proceedings before the revenue authority proceeded behind the back of the petitioners and thereby affecting their valuable rights in the land in question. It is submitted that in the year 2019, the said transaction came to the knowledge of the petitioners, therefore, they immediately filed an application before the Mamlatdar, bringing to his notice that the aforesaid transaction was made in violation of the provisions of the Fragmentation Act. He further submitted that after initiating proper procedure and affording an opportunity of hearing to the interested respondents, the Mamlatdar arrived at the conclusion that the transactions of the years 1977 and 1988 respectively were in violation of Section 31 of the Fragmentation Act as it created two separate blocks, which is impermissible, and therefore the respondents were treated to be in unauthorised occupation.

5. It is further submitted by the learned advocate that the Revenue Secretary failed to consider the grounds on which the Mamlatdar had considered the violation of the provisions of the Fragmentation Act. The Revenue Secretary also failed to consider that the petitioners had never gave up their right or share in the land in question and that the sale deeds, on which the private respondents are relying upon, were made behind their back and cannot be used for extinguishing the rights of the petitioners under succession to the property.

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6. It is submitted by learned advocate for the petitioners that the Revenue Secretary has failed to take into consideration the very basic object of the Fragmentation Act and has, therefore, erred in not appreciating the fact that by way of two registered sale deeds, the land which was covered under Section 3 of the Fragmentation Act was, in fact, fragmented and that too, without the necessary permission of the competent authority.

7. Lastly, learned advocate for the petitioners submitted that the finding given by the Revenue Secretary that there is no fragment out of the said sale deeds, is erroneous.

8. As against this, learned advocate Mr.Mrugen Purohit appearing with Mr.K.H.Trivedi, learned advocate for the respondent no.4, has submitted that the proceeding initiated by the petitioners under the provisions of the Fragmentation Act is a malicious attempt to re-select their rights in the subject land which have already been extinguished and that after a long period of time such rights have been agitated.

9. He has further submitted that the submission made by the petitioners that they came to know about the transactions of the years 1977 and 1988 only in the year 2019 can hardly be believed as the actual possession and occupation of the land in question is with respondent Nos.4 and 5, subsequent to their registered sale deeds and, therefore, even on that ground also

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the possession of the respondents was very much there and was within the knowledge of the petitioners. Despite this, they chose to move the Court after almost a period of 20 years.

10. He has further submitted that the Mamlatdar had arrived at an erroneous conclusion that there is fragmentation of the plot of land as, in fact, considering the total measurement under the transactions, the provisions of the Fragmentation Act itself would not be attracted. Over and above the same, the fact that the Mamlatdar chose to interfere after such a long period itself creates doubt about the reason for which the Mamlatdar thought it fit to interfere.

11. Having heard the learned advocates for the parties and having perused the documents on record, the chronology of events would indicate that on 9.5.1977, Maganji Suraji and Ranchodji Punjaji had sold the land admeasuring about 6778 sq. mtrs. in favour of Rabari Kalabhai Bijolbhai by a registered sale deed. Further, prior to the said sale deed, Mutation Entry No.3517 was made in the revenue record with regard to the consolidation of the land and accordingly, the old Survey Nos. 604, 605 paiki, 606 and 607 paiki were given Block No.1204. On 21.3.1988 Rabari Kalabhai Bijolbhai had sold the land admeasuring about 6778 sq. mtrs. to the respondent Ramaji Babaji Thakor. On 29.8.1988, Ranchodji Punjaji and Shanaji alias Chanaji also sold the land admeasuring about 10000 sq. mtrs. of Block No.1204 to the respondent and accordingly he became the owner and occupier of the land admeasuring about

C/SCA/15051/2022 JUDGMENT DATED: 09/12/2022

16778 sq. mtrs. and since the execution of both the sale deeds, the respondent is cultivating the land in question as owner and occupier of the said land. The aforesaid sale deeds have never been questioned by Ranchodji Punjaji or any heir of Maganji Suraji at any point of time.

12. It appears from the revenue record that Entry No.4293 has been mutated in the revenue record giving effect to the sale deeds which were executed on 9.5.1977 and 21.3.1988 respectively. It is relevant to note at this stage that before mutating the Entry No.4293, the notices under Section 135D dated 22.3.1988 had been issued to Thakor Jeckyben widow of Becharjibhai Maganjibhai, Thakor Gabhaji Becharjibhai, Thakor Somaji Becharjibhai, Thakor Govaji Becharjibhai (legal heirs of Becharjibhai and the petitioners herein), Rabari Kalabhai Bijolbhai (respondent no.5 herein), Thakor Ranchodji Punjaji and Thakor Chhanaji Maganji. The said mutations were never objected to by the legal heirs of Becharjibhai Thakor at the relevant point of time and they had the knowledge of the said transactions which took place in the year 1977 and 1988 respectively, which they have never assailed or challenged before any appropriate forum at the relevant point of time and now at this belated stage they have raised objections, which are impermissible in law.

13. It is also relevant to observe at this stage that before mutating the Entry No.4293, the statements of Rabari Kalabhai Bijolbhai and Ranchodjibhai Punjaji Thakor were recorded at the

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relevant point of time and from the statement of Rabari Kalabhai Bijolbhai, it appears that the land in question was located adjacent to the land of the respondent and therefore also there is no breach of any provisions of the Fragmentation Act and there is no fragmentation of any land.

14. It is pertinent to observe that by Mutation Entry No.4310, the sale transaction which has been executed in favour of the respondent no.4 has been given effect in the revenue record and the said entry appears to have been certified on 5.11.1988.

15. It is also pertinent to observe that a new survey was carried out by the Government in the year 2017 and accordingly Block No.1204 has been given new Block No.1335 by Mutation Entry No.8735.

16. On 6.4.2018, the Mamlatdar passed a Corrigendum, whereby a separate account number was given considering the fact that the respondent no.4 became the owner and occupier of the land admeasuring about 16778 sq. mtrs. from old Block No.1204, which was admeasuring about 25871 sq. mtrs.

17. It appears from the revenue record that after the order dated 6.4.2018, the Mamlatdar has given a separate account to the land which is owned and occupied by the respondent no.4 by a separate Block No.1335/Paiki 1.

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18. The petitioners are the heirs of Becharji Maganji who had sold the land admeasuring about 6778 sq. mtrs. on 9.5.1977 to the respondent no.5 herein who, in turn, sold the said land to the respondent no.4 on 21.3.1988. The ancestors of the petitioners, through whom the petitioners are claiming right in the properties in question, have pocketed the money. Thereafter, almost about 33 to 42 years, an application has been made to the Deputy Collector (Prant Officer) on 16.10.2019 challenging the order dated 6.4.2018 passed by the Mamlatdar. The Deputy Collector, by order dated 27.1.2022, has held that the transaction executed in favour of the petitioners or their predecessor-in-title is illegal, unjust and improper and the same is in breach of the provisions of the Fragmentation Act.

19. It appears that the respondent no.4 filed the Revision Application No.MVV/CON/MSN/1/2022 before the Special Secretary, Revenue Department, Ahmedabad, who had initially granted interim relief against the order passed by the Deputy Collector and ultimately, by impugned judgment and order dated 23.6.2022, was pleased to partially allow the aforesaid Revision Application, on condition that the land in question shall be remained in the joint name of the parties and subject to restoration of the Mutation Entry Nos. 4293 and 4310 and has also partially set-aside the order passed by the Mamlatdar dated 6.4.2018.

20. There is no jurisdictional error committed by the Revenue Secretary in allowing the aforesaid Revision Application and

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therefore, no interference by this Court is called for in exercise of the powers under Article 226 of the Constitution of India.

21. It is pertinent to observe that the respondent had purchased the land in question in the year 1988 and almost after about 32 years, the petitioners have questioned the transactions before the Deputy Collector, which is barred by the principles of delay, latches and acquiescence and the application has been made for oblique and mala fide intention and even the Deputy Collector also could not have exercised the powers almost after about 32 years of the transaction executed in favour of the respondent no.4 and almost after about 44 years of the transaction which was executed in the year 1977 in favour of respondent no. 5. Thus, the power has been exercised by the Deputy Collector much after a reasonable time and therefore, the Special Secretary, Revenue Department, was justified in entertaining the Revision Application filed by the respondent no.4.

22. It appears that the Revenue Secretary, after verifying the revenue record, has found that the lands conveyed through sell is under possession for 44 years and 33 years respectively. The officer certifying the entries has certified the entries on condition of not breaking the blocks and on tenure basis. After conveying the land through sell, the opponents have, with a malafide intention, raised a dispute almost after a period of 44 years.

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23. It appears from the evidence on record, more particularly, considering the disputed entries and the application given by the respondents as well as the impugned order of the Deputy Collector that the respondents had purchased the land vide registered sale-deed Nos.762 and 2750 dated 9.5.1977 and 27.8.1988 respectively. The registered sale-deeds have neither been cancelled nor challenged. They still hold the field. The entries have been sanctioned on condition of adding the name as sharer on tenure basis. The order passed by the Mamlatdar thereafter for assigning a separate account number is not appropriate and is liable to be set-aside. The land is being irrigated through personal bore-well. There are several judgments of this Court, wherein it has been held that adding of names on tenure basis does not result in breach of condition. This Court has held in various judgments that the person selling the land for consideration waives all the rights in the land. Considering all the aforesaid aspects, it was considered necessary and proper to rectify the order of the Deputy Collector and, therefore, the Mamlatdar, vide Order No.E-Dhara/Revised Order/S.R./61/2018 dated 6.4.2018, rectified the record. However, since the permission for rectification of the record was not given, the same came to be rejected and the Entry Nos.4293 and 4310 which were admitted on condition of joint account was reinstated.

24. In view of the aforesaid reasoning, the Court does not find any reason to interfere with the order passed by the Special Secretary, Revenue Department. However, at this stage, it is

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submitted by the learned advocate appearing for the petitioners that the petitioners have initiated civil proceedings challenging the registered sale deeds. Therefore, it is observed that the final outcome of the civil suit would be binding for the revenue record.

25. With the aforesaid, the petition stands dismissed.

(A.Y. KOGJE, J.) /MOINUDDIN