Gujarat High Court

Ahmed Mahamed Asmalji vs State Of Gujarat on 1 August, 2023

Bench: Niral R. Mehta

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 22255 of 2017

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                     AHMED MAHAMED ASMALJI & 9 other(s)
                                  Versus
                        STATE OF GUJARAT & 3 other(s)
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Appearance:
MR PUSHPADATTA VYAS(1296) for the Petitioner(s) No. 1,10,2,3,4,5,6,7,8,9
MR NIKUNJ KANARA AGP - ADVANCE COPY SERVED TO GOVERNMENT
PLEADER/PP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2,3
NOTICE SERVED BY DS for the Respondent(s) No. 4
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 CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                              Date : 01/08/2023

                               ORAL ORDER

[1] By way of this petition under Articles 226 and 227 of the

Constitution of India, the petitioners have called in question the

legality and validity of the order dated 21 st February 2015 passed

by the Collector, Bharuch and order dated 25th July 2017 passed by

the Special Secretary, Revenue Department (Appeals), whereby the

mutation of entries Nos.8848, 8869 and 8870 came to be cancelled

on the ground that the said mutation was done on the basis of

unauthenticated power of attorney.

[2] The short facts of the case can be stated as under:

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[2.1] The petitioners are the original owners of the land bearing

survey No.438 situated at village : Kosamdi, Taluka : Ankleshwar,

District : Bharuch.

[2.2] The petitioners Nos.2, 5 and 8 executed registered release

deed in favour of the petitioner No.3 qua the right in the land in

question. After due verification, entries Nos.8848, 8869 and 8870

came to be mutated by the competent authority on the basis of the

said registered release deed.

[2.3] The Collector, Bharuch initiated suo motu proceeding for

cancellation of above mentioned entries on the basis of the report

made by the Mamlatdar, Ankleshwar on the ground of objection /

letter purported to have been issued by the petitioners Nos.6, 7 and

9 disputing, inter alia, the authenticity of the power of attorney. In

the said proceeding, despite notice was issued, the petitioners

Nos.6, 7 and 9 herein, who alleged to have taken objections, not

appeared before the authority and/or have not raised any objection

whatsoever in nature. However, ignoring the said aspect, the

Collector, Bharuch, relying upon the said unauthenticated objection

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/ letter, doubted the competency of power of attorney and

subsequently, vide its order dated 21st February 2015, cancelled the

mutation of entries Nos.8848, 8869 and 8870.

[3] Being aggrieved and dissatisfied by the aforesaid, the

petitioners approached the respondent No.2 by way of revision

application No.MVV/HKP/BHCH/89/2015 under the provisions of

Section 211 of the Gujarat Land Revenue Code. However, the

respondent No.2, vide its order dated 25th July 2017, rejected the

said revision application.

[4] Being aggrieved and dissatisfied by the aforesaid, the

petitioners have approached this Court by way of this Special Civil

Application under Articles 226 and 227 of the Constitution of India

for the appropriate writ, order or direction.

[5] I have heard Mr. Pushpadatta Vyas, learned advocate for the

petitioners and Mr. Nikunj Kanara, learned A.G.P. for the

respondents - State authorities.

[6] Mr. Pushpadatta Vyas, learned advocate for the petitioners,

while assailing the impugned orders, has made the following

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submissions:

[6.1] Mr. Vyas, learned advocate for the petitioners submitted that

the initiation of suo motu proceeding at the instance of the

Collector, Bharuch on the basis of report made by the Mamlatdar,

Ankleshwar questioning and doubting the authenticity of power of

attorney holder itself is not tenable in the eye of law, and thereby,

the order passed therein deserves to be quashed and set aside.

[6.2] Mr. Vyas submitted that as such, the present petition has

been filed by all the family members including the daughters /

sisters, who, according to the report of the Mamlatdar, Ankleshwar,

doubted the validity of the power of attorney and jointly requested

this Court to quash and set aside the impugned orders by

confirming the registered release deed executed by them in favour

of the petitioner No.3. Under the circumstances, Mr. Vyas has

prayed this Court to quash and set aside the impugned orders on

this ground alone.

[6.3] Mr. Vyas further submitted that the entries in question came

to be mutated by way of registered release deed, and thereby, the

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registered release deed is at the instance of the power of attorney

holder. At this stage, in absence of any objection and/or any

dispute with regard to the registered release deed and/or power of

attorney, the revenue authorities ought not to have considered

unauthenticated letter and further ought not to have cancelled the

entries posted pursuant thereto.

[6.4] Mr. Vyas further submitted that even otherwise, as per the

settled law, while exercising revenue jurisdiction, the revenue

authorities could not have gone into the violation of the provisions

of other enactments and/or gone into the validity and legality of

any document and/or competency of the document in question.

According to Mr. Vyas, therefore, the revenue authorities said to

have committed cross utilization of power, which is not permissible

in the eye of law.

[7] By making above submissions, Mr. Vyas, learned advocate for

the petitioners has prayed this Court to allow the present petition

as prayed for.



[8]     Per contra, Mr. Nikunj Kanara, learned A.G.P. for the






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respondents - State authorities, while supporting the impugned

orders, made the following submissions:

[8.1] Mr. Kanara, learned A.G.P. for the respondents - State

authorities submitted that the impugned orders passed by the

revenue authorities are perfectly justified and the same may not be

quashed and set aside by this Court.

[8.2] Mr. Kanara further submitted that while passing the

impugned orders, the revenue authorities have rightly considered

the aspect of genuineness of the power of attorney, which is alleged

to have been not issued by the original objector, and thereby, based

on such power of attorney, the revenue authorities have rightly

cancelled the entries.

[9] By making above submissions, Mr. Kanara, learned A.G.P. for

the respondents - State authorities have requested this Court to

dismiss the present petition.

[10] I have heard learned advocates appearing for the respective

parties and have gone through the material produced on record. No

other and further submissions have been canvassed by the learned

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advocates appearing for the respective parties except what are

stated hereinabove.

[11] Having considered the aforesaid submissions made by the

learned advocates appearing for the respective parties and having

gone through the material produced on record, the undisputed

facts emanated are as under:

(i) All the petitioners are real brothers and sisters of one

family.

(ii) The petitioners Nos.6, 7 and 9 are the sisters who have

executed registered release deed qua the land in question in

favour of the petitioner No.3 i.e. brother. It is pertinent to

note at this stage that the said registered release deed has

never been disputed by the petitioners Nos.6, 7 and 9.

(iii) The petitioners Nos.6, 7 and 9, who alleged to have

taken objection against the entries, are before this Court as

co-petitioners and requested this Court to allow the present

petition by quashing and setting aside the impugned orders.

(iv) Mr. Vyas, learned advocate for the petitioners made a

statement at the Bar that even before the revisional authority,

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the petitioners Nos.6, 7 and 9, in their personal capacity,

made affidavit stating that the order passed by the Collector

Bharuch be quashed and set aside and the entries Nos.8848,

8869 and 8870 be restored in the revenue records.

(v) The petitioners Nos.6, 7 and 9 have never disputed the

authenticity of power of attorney executed by them.

(vi) No civil suit and/or any proceeding whatsoever in nature

has been filed between the parties for the land in question.

[12] Keeping in mind the aforesaid undisputed facts, it is pertinent

to refer the decision of this Court in the case of Gandabhai

Dalpatbhai Patel vs. State of Gujarat and others, reported in 2005

(2) GLR 1370. The relevant observations made by this Court in the

said decision are thus:

"9. It is the consistent view taken by this Court in catena of judgments that the revenue authorities while dealing with RTS proceedings had no jurisdiction and/or authority to decide the question of title and if there is any dispute with regard to title the parties are to be relegated to the Civil Court. As held by the Hon'ble Supreme Court in the case of State of Gujarat VS. Patel Raghav Natha - AIR 1969 SC Page 1297 and judgment of this Court in the case of Ratilal Chunilal Solanki & Ors. Vs. Shantilal Chunilal Solanki - 1996(2) GLR 525 and Siddharth B. Shah vs. State of Gujarat, reported in 1999(3) GLR Page 2527, the revenue authorities cannot decide the disputed question of title to the property and they have to merely go by the documents produced

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before them. Even this Court has held in the case of Nathabhai Meraman Darji (Supra) that when a document of registered sale deed is produced before the authority, the revenue authorities are bound to give effect to the same and are not required to decide the question of title.

10. Even this Court in a recent judgment in the case of L.R.s of Popat Khima Ramani and Ors. vs. Collector, Rajkot and Ors., reported in 2003(1) GLH 30, has considered the scope of revenue authorities while deciding the question with regard to mutation entry and the powers under Section 135 and Rule 108, has held that revenue authorities are not to decide the question about title and the revenue authorities are to make necessary entries on the basis of decision of Civil Court. It is further held in the said judgment that the revenue authorities are invested with limited powers under Section 135 and they cannot assume to themselves certain powers conferred on them by law and they cannot assume jurisdiction of Civil Court. The revenue authorities cannot decide validity of transaction on touchstone of statutory provision occurring in some enactment and that they cannot decide disputed question of title. In fact, this Court has gone to the extent that when a dispute as to the title arises the parties have to go to the competent Civil Court. In the present case, in fact the Civil Suit is pending between the parties and the Civil Court is to decide all these questions which are raised by the petitioner in the present Special Civiil Application with regard to validity of the power of attorney, the genuineness of sale deed, and the authority of power of attorney holder on the basis of the power of attorney. Considering the fact that the suit is pending between the parties and that the petitioner has challenged the legality and validity of the sale deed before the Civil Court and that there is an injunction in the said Suit, in fact the Secretary (Appeals) has tried to strike the balance and has tried to protect the interests of all the parties by directing that the factum of injunction granted by the Civil Court should also be noted in the entry and that the entry in favour of respondent No.5 would be subject to the ultimate outcome of the suit pending between the parties in which the legality and validity of the sale deed is challenged. It cannot be said that there is any illegality committed by the Secretary (Appeals). On the contrary, the judgment and order passed by the revisional authority, i.e. Secretary (Appeals) is in consonance with the provisions of Section 135 of the Bombay Land Revenue Code

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and 108 of the Bombay Land Revenue Rules and the view taken by the Hon'ble Supreme Court as well as this Court with regard to the powers of revenue authorities while dealing with the question of mutation entries. The revenue authorities are not required to consider with regard to the genuineness of the sale deed, the powers and authority of the power of attorney holder under the power of attorney and the question with regard to the title. What is required to be done by the Sub-Registrar at the time when the sale deed was executed cannot be permitted to be done by the Mamlatdar and/or revenue authorities while deciding the question with regard to mutation entry, more particularly the entry in the record of rights is only having a presumptive value and only for a fiscal purpose of recovering and payment of revenue and it does not confer any right, title or interest in favour of any party in the property.

11. So far as submissions and arguments on behalf of the petitioner that by virtue of the aforesaid transaction that there would be a breach of provisions of the Bombay Prevention of Fragmentation Act as the land would be fragmented and therefore also the respondent could not have purchased the land in question and the said transaction was in breach of provisions of the Act and therefore also the entry in favour of the respondent could not have been made on the basis of the said sale. This aspect is already considered by this Court in the case of Evergreen Apartment Cooperative Housing Society Vs. Special Secretary, Revenue Department, Gujarat State, reported in 1991(1) GLR 113, and also in the case of Siddharth B. Shah & Ors. Vs. State of Gujarat, reported in 1999(3) GLR Page 2527. This Court in the aforesaid two judgments has considered the scope and ambit of Rule 108 of the Bombay Land REvenue Rules and the jurisdiction of the revenue authorities while considering the RTS proceedings and has held as under;

"So far as the proceedings under Section 108 of the Rules popularly known as RTS proceedings are concerned it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by the competent authorities under special enactments. Independently the revenue authorities, as mentioned in 108 of the Rules, cannot pass

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orders of cancelling the entries on an assumption that the transactions recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed."

Considering the judgment of this Court in aforesaid two cases, there is no substance in the argument and submission on behalf of the petitioner to the effect that while considering the RTS proceedings and making necessary entry in favour of the respondents, the revenue authority was also required to consider that by aforesaid transaction there will be breach of provisions o Fragmentation Act or not and the same is required to be rejected."

[13] In view of the aforesaid enunciation of law and the

undisputed facts, in my view, the decision taken by the Coordinate

Bench of this Court in the aforesaid judgement is squarely applied

to the facts of the present case. In my view, the revenue authorities

could not have gone into the aspect of competency of power of

attorney holder while exercising power under the revenue

proceeding, more particularly, power of attorney was never

disputed by the maker of it nor till today, any suit whatsoever has

been filed regarding land in question. Thus, the revenue authorities

have clearly exceeded the jurisdiction by utilizing power which is

not permissible in the eye of law, and thereby, the impugned orders

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