Durgasankar Shivsankar Since ... vs State Of Gujarat
2022 Latest Caselaw 4997 Guj

     C/SCA/6697/2018                             JUDGMENT DATED: 09/06/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6697 of 2018


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 ?                         Yes

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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    DURGASANKAR SHIVSANKAR SINCE DECEASED THRU HIS LEGAL
         REPRE. MAHENDRABHAI DURGASANKAR TRIVEDI
                           Versus
                     STATE OF GUJARAT
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Appearance:
MR SATYAM Y CHHAYA(3242) for the Petitioner(s) No. 1
MS DHWANI TRIPATHI, AGP for the respondent Respondent No.1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4,5,6,7
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 09/06/2022

                            ORAL JUDGMENT

1. Being aggrieved and dissatisfied with the order passed by the learned Special Secretary Revenue Department (the SSRD) in Revision Application no.MVV/HKP/AMD/335/2016 dated 03.11.2017

C/SCA/6697/2018 JUDGMENT DATED: 09/06/2022

whereby, the revision filed by the petitioner came to be rejected and order dated 12.09.2016 passed by the District Collector, Ahmedabad came to be confirmed, the petitioner preferred this petition under Article 226, 227 of the Constitution of India.

2. The brief facts giving rise to the present petition are as under:-

2.1. The dispute pertains to the land bearing survey no.325 admeasuring 5 acres 11 gunthas of village Koth, Taluka Dholka, District Ahmedabad which was in ownership and in occupation of Khoda Dhor Panjrapole which was a public Charitable Trust. The Trust was a registered Charitable Trust and in view of it under Section 88B of the Gujarat Tenancy and Agricultural Lands Act, 1948 (for short the Act), it was exempted from the provisions of the Tenancy Act.

2.2. That as per the revenue record, the name of the father of the petitioner was shown as occupier of the land in question right from the year 1953 and he was tilling the land. The said land was purchased by the father of the petitioner by registered sale deed dated 24.04.1987, after the

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necessary permission was granted by the Charity Commissioner under Section 36 of the Bombay Public Charitable Trust Act to sell out the property. Since, the petitioner and their father were unaware of the procedural aspects, they did not applied for mutation of their name in the revenue record and even the revenue authorities failed to discharge their duty to make entry under Section 135(C) of the Land Revenue Code.

2.3. That the petitioner and their family members approached the authority for mutation of an entry of registered sale deed and accordingly entry no.5624 was mutated in the village form no.6 as kacha entry however, the same was not certified. Against that action, petitioner preferred appeal before the Deputy Collector, Dholka which was registered as Case No.91 of 2012. The Deputy Collector while referring the provisions of Section 88B of the Tenancy Act and Devsthan Inami Abolition Act, 1969, rejected the same. Against that order, revision came to be preferred before the District Collector, Ahmedabad being Revision Application No.491 of 2015. He has also dismissed the revision application.

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2.4. That the said order came to be challenged before the learned SSRD, who in turn has also rejected the same. The petitioner has challenged this order on the ground that the Trust which has sold the land to the father of the petitioners was a charitable trust and therefore, Section 88B of the Tenancy Act is not applicable as well as on the ground that after the permission under Section 36 of the Bombay Public Charitable Trust Act by the Charity Commissioner, the land was sold by the Trust to the father of the petitioner by registered sale deed and therefore, it cannot be hit by any legal provisions. According to the petitioner, these facts have not been considered by the revenue authorities and they have no such authority to cancel the revenue entry.

3. Heard learned advocate Mr.Satyam Chhaya for the petitioner and learned AGP Ms.Dhwani Tripathi for the respondent State at length. Perused the material placed on record.

4. Learned advocate Mr.Chaya for the petitioner has reiterated the facts which are narrated in the memo of petition which are referred to hereinabove. He has submitted that since the Trust was a Charitable Trust, Section 88B of the

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Tenancy Act would not be applicable and the Trust has sold the property after obtaining necessary permission under Section 36 of the Bombay Public Charitable Trust Act. He has submitted that there was no proceeding initiated under the Tenancy Act and therefore while exercising powers under the RTS proceedings, the authority ought not to have considered the aspects of the other acts. He has submitted that it is a cross exercise of powers by the revenue authorities under different Act. He has submitted that the impugned action of the authority is not sustainable in the eyes of law. He has prayed to allow the present petition.

5. Per contra, learned AGP Ms.Dhwani Tripathi for the respondent State has submitted that the order passed by the revenue authorities are proper and as per the order of the authorities only direction has been issued to initiate proceedings under the Tenancy Act and in that proceedings, the petitioner will have an opportunity of being heard and therefore, this petition may be dismissed.

6. Having considered the submissions made on behalf of both the sides, coupled with the

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material placed on record, it clearly transpires that the land in question originally belongs to the Panjrapol Trust and it has been sold by the trustees of the Panjrapol Trust to the father of the petitioner after obtaining necessary legal permission from the Charity Commissioner under Section 36 of the Bombay Public Charitable Trust Act. Thus, action of selling the property of the Trust is done by the trustees after obtaining requisite permission under the applicable law. Admittedly, the permission by the Charity Commissioner has not been challenged by anybody. Further, the authority was dealing with the RTS proceeding of certifying the revenue entry which was based upon the registered sale deed. It is incumbent on the part of the revenue authority to make entry regarding any transaction made on the basis of registered deed. Further, as settled proposition of law, the revenue authorities, while dealing with the RTS proceedings has no authority to exercise powers vested under the other statute.

7. At this juncture, it is pertinent to note that even under Section 88B of the Tenancy Act, which specifically provides that all the provisions of the Tenancy Act are not applicable to the lands

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which are property of the Trust, which include Panjrapole or Gaushala or Hospital and which is registered under the Bombay Public Charitable Trust Act. The applicability of the provisions, especially under Section 3, 4(b), 8, 9, 9(a), 9(b), 9(c), 10, 10(a), 11 and 13 of the Tenancy Act are concerned, relates to the payment of rent as well as question of tenancy between the Trust and the tenant. Section 77 thereof relates to the prohibition of assignment of the tenancy, however, it does not prohibit the transfer by the Trust after obtaining the requisite permission by the Charity Commissioner. Thus, the questions of applicability of Section 88B of the Tenancy Act itself is doubtful.

8. Therefore, considering the facts and circumstances of the case, it appears that the revenue authorities have not considered the provisions of the law and the fact that the Trust has sold the land in question after obtaining requisite permission from the Charity Commissioner, which still holds the field, the authority cannot exercise cross power of other statute while dealing with the RTS proceedings. Therefore, the impugned order of the revenue authority deserves to be quashed and set aside.

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9. In view of the above, the petition is liable to be allowed and is allowed. The impugned order dated 03.11.2017 passed by the Revisional Authority in Revision Application No. MVV/ HKP/AMD/335/2016 is quashed and set aside. No order as to costs. Direct service is permitted.

Sd/-

(DR. A. P. THAKER, J) URIL RANA