Integrated Proteins Ltd vs State Of Gujarat
2022 Latest Caselaw 7575 Guj

    C/SCA/4079/2018                                 CAV JUDGMENT DATED: 06/09/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 4079 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================

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

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== INTEGRATED PROTEINS LTD.

Versus STATE OF GUJARAT & 5 other(s) ========================================================== Appearance:

MR PREMAL S RACHH(3297) for the Petitioner(s) No. 1 MR MEET THAKKAR, AGP for the Respondent(s) No. 1

MR HASIT H JOSHI(2480) for the Respondent(s) No. 6.1,6.10,6.10.1,6.10.2,6.10.3,6.10.4,6.2,6.3,6.4,6.5,6.6,6.6.1,6.6.2,6.6.3,6.6.4, 6.6.5,6.7,6.8,6.9 MR HS MUNSHAW(495) for the Respondent(s) No. 2,3,4

========================================================== CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 06/09/2022

CAV JUDGMENT

1. Rule. Learned AGP Mr.Meet Thakkar waives

service of notice of rule for respondent no.1. Learned

advocate Mr.H.S.Munshaw waives service of notice of rule

C/SCA/4079/2018 CAV JUDGMENT DATED: 06/09/2022

for respondent nos.2 to 4 and learned advocate Mr.Hasit

Joshi for respondent nos.6.1 to 6.10.

2. This petition is filed for the following prayers :

9(A) YOUR LORDSHIPS be pleased to issue a writ of

mandamus, or a writ in the nature of mandamus, or any

other appropriate writ, order or direction to quash and set

aside the impugned decision dtd. 04.01.2018 communicated

vide communication dtd. 12.01.2018 passed by respondent

no.3 in Panchayat-4/Work/Appeal/16-20 of 2018 in a meeting

of the Appellate Committee held on 04.01.2018 (Annexure

`A') as being illegal, arbitrary, contrary to the settled legal

position, without jurisdiction, without competence,

discriminatory, violative of principles of natural justice as

also violative of Art.14 and 19(1)(g) of the Constitution of India in the interest of justice.

(AA) Your Lordships be pleased to quash and set aside the

impugned order dated 8.3.2018 passed by Deputy District

Development Officer, Jamnagar (as communicated vide

communication dated 15.3.2018 by respondent no.4) as being

illegal, arbitrary, unreasonable, unjustified, and only with a

view to make the proceedings a futile exercise, in the

interest of justice and equity and further be pleased to

restore the entry of the petitioner in village form no.2 of the

subject lands in the interest of justice and equity.

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(B) YOUR LORDSHIPS be pleased to stay the

implementation, execution, operation of the impugned decision

dtd. 04.01.2018 communicated vide communication

dtd.12.01.2018 passed by respondent no.3 in

Panchayat-4/Work/Appeal/16-20 of 2018 in a meeting of the

Appellate Committee held on 04.01.2018, pending the

hearing, admission and final disposal of the hearing,

admission and final disposal of this petition in the interest

of justice and equity;

(BB) Your Lordships be pleased to stay the implementation,

execution of the impugned order dated 8.3.2018 passed by

the Deputy District Development Officer, Jamnagar (as

communicated vide communication dated 15.3.2018 by

respondent no.4) and further be pleased to direct respondent

no.5 to restore the entry of the petitioner in village form

No.2 in respect of subject lands, pending hearing admission

and final disposal of the present petition in the interest of

justice and equity.

(C) xxxxxx"

3. The brief facts leading to the present petition

are as under :

3.1 That the petitioner is in lawful possession and

occupation of the subject land since 1994-95 and

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construction put up by the petitioner is in existence even

as on date as is evident from the photographs annexed

with the petition. The petitioner, alongwith other various

parcels of land including land bearing survey no.3 total

admeasuring 44437.60 sq.mtrs. stuated at village

Dhinchda, Taluka and District Jamnagar was owned and

occupied by one Jaku Noormamad and family members.

It also transpires that the respondent no.2-authority has

granted permission vide order dated 17.10.1994 for non-

agricultural use. It is also transpired from the petition

that the original owner respondent no.5 along with other

family members executed power of attorney in favour of

Varinda Nandshanker Dave for the purpose of dealing

with the subject land in favour of the petitioner and accordingly nine plots from the subject land were

transferred in favour of the petitioner by different

registered sale deeds. Accordingly, on the basis of the

registered sale deeds of all the nine plots, entry came

to be mutated in village form no.2 vide entry no.197/1 to

197/2 dated 18.4.1995 and 19.4.1997 respectively in

favour of the petitioner. It is also revealed from the

petition that the petitioner, in the year 1994-95, has

constructed and established solvent plant on the subject

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land and at the relevant point of time, as there was

some irregular construction on plot nos.1 to 3, same was

regularized by Jamnagar Area Development Authroity

vide order dated 11.9.1995 on certain conditions.

3.2 It appears from the petition that in the year

2007, one of the legal heir of original land owner i.e.

daughter of Jaku Noormamad filed Regular Civil Suit

No.482 of 2007 seeking partition of share and rights in

the subject land which was already sold long back by

way of registered sale deed in favour of the petitioner in

the year 1994-95. However, the petitioner is not joined th as party to the suit proceedings and the learned 5

Additional Senior Civil Judge, Jamnagar vide order dated

31.12.2012 passed in Regular Civil Suit No.482 of 2007,

dismissed the suit. From the judgment of the suit, it

transpires that at the relevant time, there is admission

made by the respondent no.6 herein in the said suit that

subject land is already sold to the petitioner by

registered sale deed. Thereafter, the petitioner has also

filed Regular Civil Suit No.310 of 2008 which was

subsequently withdrawn by the petitioner.

3.3 Meanwhile, after a delay of more than 19

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years, it appears that respondent no.6-Haji Jaku

Noormammad Kakal through his new Power of Attorney

holder Anwar Abdulsattar Kakal, filed application dated

1.2.2016 seeking cancellation of entry mutated in village

form no.2 which is recorded in favour of the petitioner.

It is also pertinent to note at this stage that except

respondent no.6, no other legal heirs have raised any

such grievance including the grievance of non-service of

Section 135D notice and have not challenged the entry

mutated in favour of the petitioner. The Mamlatdar

(Rural), vide communication dated 8.6.2016, returned the

application of the respondent no.6 on the ground that no

Power of Attorney is produced on record. Moreover, as

per notification dated 16.4.2015, application seeking cancellation of entry in village form no.2 vests with the

Gram Panchayat.

3.4 Thereafter, it appears that the application was

made by respondent no.6 to the respondent no.5-Gram

Panchayat wherein, Panchayat was pleased to issue

notice to the petitioner and petitioner has filed its reply.

Thereafter, the respondent no.5-Gram Panchayat vide

resolution/order dated 6.1.2017 observed that entry

mutated in favour of the petitioner is on the basis of

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the registered sale deed and neither these sale deeds are

challenged before any Civil Court nor cancelled by any

competent Civil Court and it is also recorded that there

is admission of sale transactions in favour of the

petitioner by the objector in Regular Civil Suit No.482 of

2007. Therefore, entries mutated in village form no.2 in

favour of the petitioner cannot be cancelled.

3.5 It is further transpired that being aggrieved by

order dated 6.1.2017 passed by respondent no.5,

respondent no.6 approached respondent no.3-appellate

authority by way of appeal interalia contending that the

order passed by Gram Panchayat is without examining

the record and without verifying the registered sale

deeds. It appears that the Appellate Committee, in a

meeting held on 4.1.2018, vide resolution no.4 resolved

that from perusal of the report dated 1.1.2018 submitted

by Taluka Development Officer, it appears that original

sale deeds are with the Registrar of Stamps for deficit

stamp duty and therefore, no original documents were

produced before the authority while mutation of entry

and therefore considering that the appeal is also

preferred against the judgment and order passed in

Regular Civil Suit No.482 of 2007, the decision of Gram

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Panchayat dated 6.1.2017 is required to be reconsidered.

3.6 Therefore, being aggrieved by the decision of

Appellate Committee by order dated 4.1.2018 which is

communicated on 12.1.2018 to the petitioner, the

petitioner has preferred the present petition on the

ground that the entire exercise of power exercised by

Appellate Committee under the Gujarat Village

Panchayat Village Site Property (Mode of Making

Mutation Entry in the Occupancy Right) Rules, 2015

(hereinafter referred to as `Rules of 2015') is wholly

misconceived and without jurisdiction in view of the fact

that vide notification dated 14.2.2006, the respondent

no.1 declared list of survey numbers of revenue villages

to be specified as per Larger Urban Areas to be included

within the limits of city of Jamnagar. Pursuant to the

same, the land bearing revenue survey numbers including

survey no.3 i.e. the subject land situated at village

Dhinchda is also included within the limits of the city of

Jamnagar. Therefore, considering Rule 3 of Rules of

2015, it is clear that these rules does not apply to the

subject land as Rule 3 categorically provides that Rules

of 2015 shall be applicable only to those revenue villages

in which city survey has not come in force and on

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implementation of city survey in those villages,

application of these rules will suo motu come to an end

and the record will come in existence as per the

provisions of The Bombay Land Revenue Code, 1879

(hereinafter referred to as `the Code') about the city

survey.

3.7 During the pendency of this petition, draft

amendment was moved to bring certain events on record.

The draft amendment was granted vide order dated

20.3.2018 which reads as under:

"1. Heard learned senior advocate Mr.R.S.Sanjanwala with

Mr.Premal Rachh for the petitioner.

2. Considering the development which took place during the pendency of the petition, Draft Amendment is taken on

record and the same shall be carried out within two days

from today.

3. In view of Rule-3 of Notification dated 16.04.2015, Notice

as to interim relief, returnable on 04.04.2018.

4. In the meantime, it would be open for the petitioner to

request the authority to reflect the number of present

petition on revenue record and the challenge contain therein

before the authority who gave effect to the entry subsequent

to the earlier order dated 04.01.2018.

5. In the meantime, the parties are directed to maintain

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status-quo with regard to the land in question.

6. Direct service is permitted."

3.8 Accordingly, the amendment was carried out

and it is revealed that the Taluka Development Officer,

Jamnagar vide communication dated 3.3.2018 addressed

to the Deputy District Development Officer, Jamnagar

that the entry mutated in favour of the petitioner is on

the basis of the registered sale transaction, which cannot

be set aside or disturbed. Further, it is also

communicated that in view of notification dated

14.2.2006, land bearing survey no.3 is included within

the limits of Jamnagar Municipal Corporation and

therefore the panchayat authority has no power or

authority to pass any orders or initiate any proceedings in respect of the subject land. Thereafter, it seems that

the Deputy District Development Officer, Jamnagar

directed the Taluka Development Officer, Jamnagar on

8.3.2018 to implement the decision dated 4.1.2018 of the

Appellate Committee within two days. Accordingly, the

Taluka Development Officer, vide communication dated

15.3.2018, directed the respondent no.5 to delete the

entry in village form no.2 and post the name of original

land owner and report to the authority within two days.

C/SCA/4079/2018 CAV JUDGMENT DATED: 06/09/2022

Consequently, the entry posted in favour of the petitioner

on the basis of registered sale deed, came to be deleted

and name of respondent no.6 and other family members

came to be posted in village form no.2. Hence, this

petition.

4. Heard learned advocate Mr.Rachh for the

petitioner, learned AGP Mr.Meet Thakkar for respondent

no.1, learned advocate Mr.Munshaw for respondent nos.2

to 4 and learned advocate Mr.Hasit Joshi for respondent

nos. 6.1 to 6.10.

5. Learned advocate Mr.Rachh has submitted that

it is apparent that from 2006 onwards, subject land is

not within the ambit and purview of village survey

numbers so as to apply the Rules of 2015 and therefore,

the exercise of power by the Appellate Committee and

the impugned decision is without jurisdiction, more

particularly, in view of the provisions of Rule 3 of the

Rules of 2015. It is also averred by Mr.Rachh for the

petitioner that the mutation entry was posted in the

year 1996 in village form no.2 under the provisions of

the Code and therefore the above mentioned Rules of the

year 2015 cannot be made applicable retrospectively and

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that too, to override the effect of past proceedings

concluded under the Code. He further submitted that the

impugned decision passed while entertaining the

proceedings under the Rules of 2015 is wholly

misconceived and liable to be quashed and set aside.

5.1 He further submitted that in view of Sections

135C and 135D of the Code and as observed in catena

of decisions of this Court that revenue authorities are

bound to make a mutation of entry on the basis of

registered sale deed. He relied on the decision reported

in the case of Balvantrai Ambaram Patel V/s State of

Gujarat, reported in 2016(2) GLR 1786 and submitted that once the person purchases the land by virtue of

registered sale deed, he is entitled to have his name

mutated in revenue records. He further relied on the

judgment in the case of Joint Collector, Ranga Reddy,

District & Anrs. Vs/ D.Narsing Rao & Ors., reported in 2015(3) SCC 695 and submitted that the delay caused in

exercise of revisional jurisdiction is frowned upon because

if actions or transactions were to remain forever open to

challenge, it will mean avoidable and endless uncertainty

in human affairs, which is not the policy of law.

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5.2 He further submitted that in the present case,

the entry mutated in the record of rights on the basis of

registered sale deed is prior to 19 years and it cannot

be set aside after a delay of 19 years. He has further

submitted that it is also revealed from the judgment of

the Civil Suit No.482 of 2007 which is filed by one of

the family members without joining the present petitioner

in that suit, the respondent no.6 herein has admitted

that the suit land is sold to the present petitioner and

therefore it appears that the present dispute is raised

with some extraneous and oblique motive by another

power of attorney holder of respondent no.6.

5.3 He, therefore, submitted that this petition is

required to be allowed as respondent no.3-authority has

erred in not considering the relevant provisions of Rules

of 2015, more particularly, Rules 3 and 6 of the Rules of

2015, the delay and laches caused in initiating the

proceedings after 19 years, and above all the conduct of

the respondent no.6 who has admitted in the earlier suit

that he has sold the land to the present petitioner and

thereafter filed the said application for cancellation the

mutation entry and the other heirs of the respondent

no.6 have not made any grievance about the non-service

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of notice under Section 135D of the Land Revenue Code

at the relevant point

5.4 At this stage, Mr.Rachh has relied on the

judgment of this Court passed in Letters Patent Appeal

No.1488 of 2018 in Special Civil Application No.636 of

2011 dated 4.5.2021 on the point of delay in exercising

powers by the appellate authority.

6. Per Contra, learned advocate Mr.Munshaw

appearing for the respondent nos.2 to 4 submitted that

since the respondent no.6 has pointed out that there are

lacunae as notice under Section 135D is not served on

the respondent no.6 neither the respondent no.6 has

contended that he has executed any power of attorney in

favour of the earlier power of attorney who has executed

sale deed in favour of the present petitioner. He has

further submitted that since the other authorities have

also given report including that at the relevant point of

time, the sale deed of the present petitioner is lying

before the stamp duty authority as no proper stamp duty

is paid, even then the revenue authorities, in absence of

original sale deed, have mutated the entries in village

form no.2 at the relevant point of time and therefore he

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has stated that in view of the Rules of 2015, the

Appellate Committee has power to decide such appeal.

6.1 He has also relied on Section 274(1) of the

Gujarat Panchayats Act read with Section 200(4) of the

Gujarat Panchayats Act 1993 and submitted that when

such rule is enacted under this above mentioned section,

the respondent no.3-appellate authority has not

committed any error in deciding the appeal which, as per

the say of Mr.Munshaw, is decided in accordance with

law.

6.2 He has further submitted that Talati-cum-

Mantri Dhinchda Gram Panchayat as well as Taluka Development Officer, Jamnagar Taluka Panchayat had

sent the remarks about the complaint made that

Mr.Varinda Nandkishor Dave was bogus power of

attorney and respondent no.6 has never executed power

of attorney in favour of Mr. Varinda Dave and therefore

the sale deed on the basis of this is found not tenable

and therefore the revenue entry is required to be set

aside which is entered on the basis of said sale deed.

He has further submitted that the respondent authority

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has not committed any error as respondent authority has

exercised the power which is given under the powers of

Gujarat Panchayats Act and Rules made thereunder and

therefore he prays to dismiss the present petition as the

petition is meritless.

7. Learned advocate Mr.Joshi appearing for heirs

of respondent no.6 has also contended that the criminal

complaint is filed on 28.5.2019 against earlier power of

attorney by the heirs of present respondent no.6 before

City `B' Division Police Station, Jamnagar for taking

action. He has further submitted that the petitioner is to

be considered as a land grabber and the respondent no.6

has also submitted application before the learned Collector under the Land Grabbing Act, 2020. He has

further submitted that the Appellate Committee of the

Panchayat has powers to hear and decide the appeals as

the land in question is not yet included in the city

limits of Jamnagar Municipal Corporation and therefore

the contention raised by the petitioner about the

Appellate Committee has no jurisdiction is erroneous. He

has further submitted that in case of revocable power of

attorney, the document is not valid after the death of

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person who has given the authority to act on his behalf.

The Power of Attorney is to be revocable if the principal

has right to revoke power at any point of time. In this

case, the power of attorney is not valid after the death

of the principal and therefore the power of attorney since

it is not registered and not proved by the petitioner

before the competent authority or the board, the

petitioner cannot be permitted to take benefit of such

situation after the death of respondent no.6 and therefore

he submits that the petition deserves to be dismissed as

the petition has no merit.

8. Heard learned advocates for the parties,

perused the material placed on record, perused the Rules of 2015 enacted under the Gujarat Panchayats Act,1993,

perused the notification issued by the Urban

Development and Urban Housing Department,

Sachivalaya, Gandhinagar dated 14.2.2006, whereby the

village Dhinchda and some of the plots are included in

the existing limits of city of Jamnagar.

9. Rule 3 of the Rules of 2015 provides as under:

"3. These rules shall be applicable only to those revenue

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villages in which city survey has not come in force and on

implementation of city survey in those villages, application of

these rules will suo motu come to an end and the record

will come in existence as per provisions of the Bombay Land

Revenue Code, 1879 about city survey."

10. Rule 6 of the Rules of 2015 provides as under:

"6. (1) When the change in right of property is made

due to any lawful reason of sale, heirship, will, order of the

court etc., the application shall make the application to the

secretary of a village panchayat for making mutation.

(2) On receipt of the application, the secretary shall make

entry with date in Form No.3 within maximum 7 days,

which will be known as the provisional entry.

(3) In Form No.3, in column of serial number, the number

of entry shall be given consecutively as 1, 2, 3, 4 ..... On

the day on which the provisional entry is made, the

secretary shall send by Registered Post A.D., the notice in

Form No.4 of these rules, along with a copy of the

provisional entry to all persons affected.

(4) If notice is not served by Registered Post A.D. due to

any reason, it shall be served in person. If the concerned

person refuses to accept notice in person, then in presence of

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Panchas notice shall be served by pasting the notice on the

door of the house of the person concerned.

(5) If there is any objection in respect of mutation, on

receipt of the notice alongwith the provisional entry, the

affected person concerned may submit written objections, so

as to be received by Panchayat within 30 days."

11. In view of the notification dated 14.2.2006,

whereby the village Dhinchda and some of the plots are

included in the existing limits of city of Jamnagar, Rule

3 will come into play and, therefore, the Rules under

which the Appellate Committee has exercised the power

by passing a resolution or by taking impugned decision

dated 4.1.2018 communicated on 12.1.2018 is per se is without jurisdiction and therefore is illegal.

12. It is also relevant to note that the said sale

deed is executed between year 1995 to 1997 and revenue

entries are also effected in the revenue record on

18.4.1995 and 19.4.1997 by entry nos. 197/1 to 197/9 in

favour of the petitioner. It appears that in the year

2007, one of the legal heir of the original land owner i.e.

daughter of Jaku Noormammad filed Regular Civil Suit

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No.482 of 2007 where also the respondent no.6 has

admitted that he has sold the land to the petitioner.

Then, in the year 2016, one Anwar Abdulsattar Kakal,

who is the new power of attorney of respondent no.6-

Jaku Norrmammad preferred an application on 1.2.2016

seeking cancellation of entry mutated in village form.

The said proceedings were initiated after a delay of

almost 19 to 21 years, which cannot be permissible,

considering the judgment of this Court relied on by

learned advocate Mr.Rachh, learned advocate for the

petitioner passed in LPA No.1488 of 2018, wherein this

Court has considered the judgments of the Hon'ble

Supreme Court in the case of Maniben Devraj Shah V/s

Municipal Corporation of Brihan Mumbai, reported in 2012(5) SCC 157, Postmaster General and Ors. V/s Living Media India Ltd. And Anr. reported in 2012(3) SCC 563 and State of Gujarat V/s Patel Raghav Natha

and Ors., reported in 1969(1) GLR 992 and held that the delay of 15 years caused in taking action by the

appellate authority is barred by delay and laches.

13. In view of the above decision, in the present

case also, the delay is occurred in initiating the

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proceedings of almost 19 to 21 years after revenue entry

is made in the year 1995 and 1997 respectively and

therefore also, the impugned decision of the appellate

authority is invalid.

14. Further, looking to the conduct of the

respondent no.6 who has admitted that he has sold the

land to the present petitioner in the suit filed by the

daughter in the year 2007 and now in the year 2016,

through new power of attorney, he has agitated that he

has not received any notice under Section 135D and he

has never executed any power of attorney to the earlier

power of attorney holder i.e. Mr.Varinda Dave is nothing

but and afterthought and abuse of the process of the law.

15. Further, when the revenue authority has made

entry on the basis of the registered sale deed, there is

no question of cancelling such entry by any authority

including the present respondent no.3, in absence of any

decree of the competent Court for cancellation of such

sale deed. Therefore, this is a fit case to exercise

extraordinary jurisdiction under Articles 226 and 227 of

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the Constitution of India as the impugned decision is

per se arbitrary and illegal.

16. In view of the above discussion, this petition

requires to be allowed. Accordingly, the same is allowed.

This petition is allowed. The impugned decision dtd.

04.01.2018 communicated vide communication dtd.

12.01.2018 passed by respondent no.3 in

Panchayat-4/Work/Appeal/16-20 of 2018 in a meeting of

the Appellate Committee held on 04.01.2018 as well as

the impugned order dated 8.3.2018 passed by Deputy

District Development Officer, Jamnagar (as communicated

vide communication dated 15.3.2018 by respondent no.4)

are quashed and set aside and the respondent no.5 is directed to restore the entry of the petitioner in village

form No.2 in respect of subject lands.

17. Rule is made absolute to the aforesaid extent.

No orders as to cost.

(SANDEEP N. BHATT,J) SRILATHA