Akshar Associates vs Special Secretary, Revenue ...
2022 Latest Caselaw 9019 Guj

     C/SCA/17882/2016                          ORDER DATED: 12/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 17882 of 2016
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                    AKSHAR ASSOCIATES
                          Versus
SPECIAL SECRETARY, REVENUE DEPARTMENT (APPEALS) & 9 other(s)
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Appearance:
MR MANISH BHATT SR.ADV. WITH MR VIJAY H PATEL(7361) for the
Petitioner(s) No. 1
for the Respondent(s) No. 1
MR JK SHAH 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 MS. JUSTICE SANGEETA K. VISHEN
                  Date : 12/10/2022
                   ORAL ORDER

1. By this petition, the petitioner has prayed for quashing and setting aside the order dated 18.12.2015 passed by the Secretary, Revenue Department (Appeals) (hereinafter referred to as "the learned Secretary") whereby, the order dated 18.02.2015 passed by the Collector, Vadodara, granting status-quo, has been quashed and set aside; however, the proceedings with respect to NA permission were made subject to out-come of the proceeding, arising out of the order dated 02.12.2015 passed by the learned Secretary in Revision Application No.MVV/HKP/VDD/29/2015.

2. Mr.Manish Bhatt, learned Senior Counsel appearing with Mr.Vijay Patel, learned advocate for the petitioner, at the out-set, submitted that the order dated 02.12.2015 passed by the learned Secretary so also, the order dated 12.02.2015 passed by the respondent no.2 i.e. the Collector, have been quashed and set aside by this Court vide oral judgment dated 22.04.2022. Therefore, in view of the said development, the present writ petition deserves to be allowed.

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2.1. While giving the brief reference to facts, it is submitted that the trustees of Lalji Mandir Trust (hereinafter referred to as the "the Trust") have preferred an application under Section 36 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as "the Act of 1950") for the purpose of selling the subject land and as a result of the auction proceedings, the respondent no.3 was declared as a successful bidder. Vide order dated 18.04.2009 passed by the learned Charity Commissioner in Application No.36/38/05, the sale was confirmed in favour of the respondent no.3, followed by execution of the registered sale deed. Necessary entry no.1949 was posted in the revenue record on 26.08.2009. Thereafter, the District Collector, Vadodara granted the NA permission dated 25.11.2010.

2.2. It is next submitted that somewhere in the year 2011, the petitioner, vide registered sale deed dated 16.12.2011, purchased the land from the respondent no.3 and entry no.2048 was posted in the revenue record in the name of the petitioner. The petitioner had also applied for development permission from the concerned authorities for construction of the residential flats. In the year 2013, the District Collector, Vadodara has issued a show-cause notice dated 06.05.2013, requiring the petitioner to explain as to why, entry no.2048 with other entries, shall not be cancelled. The reply was filed; however, not acceding to the explanation, the District Collector passed an order dated 12.02.2015, cancelling the entry, which was unsuccessfully challenged before the learned Secretary, who, vide order dated 02.12.2015, confirmed the order of the District Collector, Vadodara; however, cancelled the entry no.1949 dated 26.08.2009 in favour of the respondent no.3 so also, the entry no.2048 dated 10.02.2012 in favour of the petitioner. The petitioner, being aggrieved, had filed a writ petition being Special Civil Application No.17881 of 2016 which came to be allowed by this Court vide oral judgment dated 22.04.2022 whereby, the orders

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dated 02.12.2015 passed by the learned Secretary, so also, the order dated 12.02.2015 passed by the Collector have been quashed and set aside.

2.3. It is submitted that clearly, the learned Secretary, while passing the order dated 18.12.2015, had made the said order subject to the order dated 02.12.2015 passed by the very learned Secretary in the RTS proceedings, arising out of the mutation entry no.2048, posted in the revenue record in favour of the petitioner and other entries as well. It is submitted that when the order dated 02.12.2015 has been quashed and set aside, the order impugned in the present writ petition also deserves to be quashed and set aside inasmuch as, entries in favour of the petitioner have, now, been confirmed. It is submitted that in view of the subsequent development, the order deserves to be quashed and set aside and the petition is to be allowed.

3. Mr.J.K. Shah, learned Assistant Government Pleader has fairly conceded to the fact and states that in view of quashing of the order dated 02.12.2015 passed by the learned Secretary in Revision Application No.MVV/HKP/VDD/29/2015 so also, the order dated 12.02.2015 passed by the District Collector, Vadodara, this Court may pass appropriate orders.

4. Heard the learned advocates appearing for the respective parties.

5. Tersely stated are the facts.

6. It is not in dispute that as a result of the auction proceedings permitted by the learned Charity Commissioner, that the land came to be sold in favour of the respondent no.3, followed by execution of the registered sale deed dated 24.08.2009. After execution of the

C/SCA/17882/2016 ORDER DATED: 12/10/2022

registered sale deed, the respondent no.3 applied for NA permission which was granted vide order dated 25.11.2010 by the Collector. Even the development permission came to be granted in favour of the respondent no.3 by the Deputy Town Development Officer, Surat Municipal Corporation. Entry no.2081 was posted in the revenue record about the grant of development permission dated 25.11.2010.

7. As is discernible from the record, the petitioner has purchased the land from the respondent no.3 vide registered sale deed dated 16.12.2011/30.12.2011 and the name of the petitioner was posted in the revenue record vide entry no.2048. The said entry was the subject matter of challenge in the RTS proceedings and as a result of the oral judgment dated 22.04.2022 passed by this Court in Special Civil Application No.17881 of 2016, the two orders have been quashed and set aside. While allowing the writ petition, this Court, in paragraphs 7 to 10, observed thus:-

"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 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

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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 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

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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 absolute accordingly. No order as to costs. Direct service is permitted."

8. The respondent no.3 executed a registered sale deed in favour of the petitioner, followed by mutation of the entry no.2048 dated 10.02.2012. It is thereafter, the petitioner applied for development permission; however, the District Collector, owing to the order dated 12.02.2015, passed by him, granted status-quo, which was challenged before the learned Secretary, who, has passed an order dated 18.12.2015. Though, it quashed and set aside the order passed by the Collector dated 18.02.2015, made it subject to the out-come of the order dated 02.12.2015 passed in the RTS proceedings.

9. Pertinently, in view of the conclusion of the RTS proceedings in favour of the petitioner, order dated 18.12.2015 passed by the learned Secretary would also not survive and deserves to be quashed and set aside and is hereby quashed and set aside.

10. The present writ petition is allowed. No order as to cost.

(SANGEETA K. VISHEN,J) Hitesh