Gujarat High Court
Jagdishchandra Vithaldas Raval vs State Of Gujarat on 7 January, 2023
Bench: Biren Vaishnav
C/SCA/13234/2018 JUDGMENT DATED: 07/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13234 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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 ?
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JAGDISHCHANDRA VITHALDAS RAVAL
Versus
STATE OF GUJARAT
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Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1
MS. DHARITRI PANCHOLI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 07/01/2023
ORAL JUDGMENT
1 This petition has been filed under Article 226 of the
Constitution of India by the petitioner challenging the
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order dated 03.02.2015 and also a communication dated
20.12.2017. By the aforesaid communications, the
petitioner has been imposed a penalty of reduction in
pension of Rs.5,000/- a month for a period of one year.
His request for reconsideration of the same was also
rejected.
2 Facts in brief would indicate that while the
petitioner was working as a Mamlatdar, from which post
he retired on 30.09.2012, a date prior to his retirement, a
charge-sheet was issued. The charge-sheet dated
29.09.2012 imputed a misconduct against the petitioner.
According to the department, in context of a parcel of
land at Iyava Vasna, Survey No. 189 / 1, the land in
question was purchased by one Kamani Chemical Works,
a partnership firm and a mutation entry pursuant to such
purchase on 10.05.1987, was recorded being Mutation
Entry No. 1331. An Entry No. 3262 was recorded on the
basis of a dissolution deed of partnership produced by the
partners of the firm, seven in number. According to the
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department, the petitioner issued notices under Sec.135-
D of the Bombay Land Revenue Code on 02.06.2009 to
only seven partners whereas the partnership firm had
eleven partners. On a complaint being made by one of the
four partners who did not receive the notice under
Sec.135-D of the Bombay Land Revenue Code, it was the
case of the department that when in the land in question
as per the revenue records the name of Kamani
Chemicals was registered and such a partnership firm
had eleven partners, without obtaining a copy of the
partnership deed from the Registrar of Firms and to
verify the number of partners, the petitioner, without
such verification, issued notices only to seven partners
and not all eleven partners, and therefore, such mutation
of entries indicated that the petitioner had acted with
doubtful integrity.
2.1 The petitioner replied to the charge-sheet. An
inquiry was held and by a report submitted on
11.07.2013, the Inquiry Officer exonerated the petitioner.
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2.2 The Disciplinary Authority having disagreed, issued
a show cause notice along with the Inquiry Officer's
Report in September, 2013. After inviting the petitioner's
comments on the Disagreement Note, by the impugned
order, the penalty of Rs.5,000/- cut in pension per month
for one year was imposed.
3 Mr.Dipen Desai, learned counsel for the petitioner,
would make the following submissions:
3.1 He would submit that a primary Inquiry Report was
conducted by his superior i.e. the Prant Officer, Sanand,
and based on the report which the Prant Officer indicated
that an appeal against the mutation has been filed in his
capacity as an Appellate Authority and the same is
pending, decision would accordingly be taken. That in the
appeal, at the hands of the aggrieved partners who were
not given such notices, the Appellate Authority found that
there was no misconception and the order of the
Mamlatdar, the petitioner, was just and proper.
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3.2 Aggrieved by the order of the Appellate Authority, a
revision was filed by the aggrieved partners and the
Revisional Authority i.e. the Collector found that there
was nothing wrong in the order of the Dy. Collector and
the revision was rejected.
3.3 Mr. Desai, learned counsel, would submit that when
on the appellate side in capacity of he acting in a quasi
judicial capacity when the mutation entry in question was
confirmed, there was no reason why departmental
proceedings could have been taken against the petitioner.
3.4 Mr.Desai, learned counsel, would further submit
that even an inquiry proceeding was initiated against Shri
R.G.Chaudhary, the concerned Deputy Collector, who
confirmed the order of the petitioner. However, the State,
by an order dated 30.01.2017, found that as the
dissolution deed did not have the exact details of the
number of partners, there was no reason for the
Appellate Authority to take a view other than the view it
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had taken. The State Government considering the merits
of the appeal found that on 25.11.1992, there were
alterations in the partnership firm and therefore, the
inquiry against his Appellate Authority being dropped
there was discrimination in continuing the inquiry against
the original order and imposing a penalty.
3.5 In support of his submissions, Mr.Desai, learned
Counsel, would rely on a judgement of the Hon'ble
Supreme Court rendered in the case of Union of India
vs. K.K.Dhawan, reported in (1993) 2 SCC 56. He
would also rely on a decision of the Co-ordinate Bench of
this Court in the case of R.S.Patel vs. State of Gujarat.,
reported in 2016 (4) GLR 3220 in the context of
misconduct in passing a quasi judicial order.
3.6 Mr.Desai, learned counsel, would also rely on a
decision rendered on 09.06.2022 in Special Civil
Application Nos. 20605 of 2015 with Special Civil
Application No. 19862 of 2015 and submit that in the
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question of a challenge to the entries, this Court had held
that there is no dispute regarding the constitution of the
partnership firm in the name of Kamani Chemicals and
also with regard to the reconstitution of the firm and in
light of a civil suit already filed by the aggrieved partners
for cancellation of the sale deed, the observations of the
learned Collector as well as the S.S.R.D, which was a
limited question before the Court in context of making the
revenue entry in question cannot be faulted. A Co-
ordinate Bench of this Court, observed that the
documentary evidence that the firm was dissolved did not
require any registration and therefore it cannot be
submitted that the action of the petitioner was contrary to
law.
4 Ms. Dharitri Pancholi, learned AGP, would support
the order of penalty and submit that while mutating the
entry in question, the petitioner ought to have taken due
care in examining the records before the Registrar of
Firms as to the constitution of the partnership. She would
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submit that merely because there were no guidelines of
procedural formalities set out, that itself would not have
been observed as a failure to prove a misconduct and the
disagreement notice was therefore rightly given to the
petitioner vis-a-vis the Inquiry Officer's Report which
indicated that the petitioner had sanctioned the mutation
entry under Sec.135-D of the Bombay Land Revenue Code
without following proper procedure.
4.1 In support of her submissions, Ms.Pancholi, learned
AGP, would rely on a decision of the Hon'ble Supreme
Court stating that parity cannot be claimed in case of
penalty orders. The decision relied upon was in the case
of State of Tamil Nadu & Anr vs. M.Mangayarkarasi
& Ors., reported in (2019) 15 SCC 515. She would rely
on paras 11 and 12 of the decision. As far as the scope of
judicial review in departmental proceedings is concerned,
Ms.Pancholi, learned AGP, would rely on a decision in the
case of State of Uttar Pradesh vs. Dalbirsingh reported
in AIR 2021 SC 4504. Reliance was placed on paras 22
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to 26 and para 29.
5 What is evident from the facts on hand and
considering the submissions made by the learned
counsels for the respective parties, it is clear that one
mutation entry No. 3262 pertaining to land at Survey No.
189 paiki 1 was certified by the petitioner. The land
belonged to Kamani Chemicals. In the revenue records,
there was no information regarding any partners of the
firm in the name of Kamani Chemicals. Subsequently, two
partners who were not issued notices under Sec.135-D of
the Bombay Land Revenue Code, made a complaint
before the Gujarat Vigilance Commission stating that
though there were eleven partners and the land was
purchased in 1984, the sub-registrar had illegally entered
the names of only seven partners in the revenue record.
Based on this, a show cause notice and a charge-sheet
was issued. The facts further indicate that against the
revenue entry in question entered in the revenue records,
the aggrieved parties had filed an appeal before the Prant
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Officer and the Appellate Authority rejected the appeal
and confirmed the mutation entry by its order dated
15.06.2012. The Appellate Authority observed that there
was nothing wrong in entering the mutation entry as it
was so done in accordance with law. In light of the
Appellate Authority, though the petitioner made an
application that the departmental proceedings be
dropped to which the Collector sent a positive opinion,
the petitioner was charge-sheeted a day just prior to his
retirement.
5.1 Perusal of the Inquiry Officer's Report indicates that
in the perception of the Inquiry Officer, and rightly so,
nothing had come on record to suggest as to what was
the breach committed by the petitioner in not following
any procedure so as to impute misconduct against him.
What was also observed by the Inquiry Officer that if the
petitioner had made the change in the revenue records
based on the documents produced before him, i.e. the
dissolution deed which was based after an issuance of a
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public advertisement and also based on a title clearance
certificate, it was not the domain of the petitioner to
enter into any other roving inquiry and the allegation that
the petitioner had in connivance with the partners made
the change in mutation entries was erroneous and
baseless.
5.2 Perusal of the Disagreement Notice to the charge to
the Inquiry Officer's Report would indicate that the only
ground on which the Disciplinary Authority thought to
defer with the fining of the Inquiry Officer was nothing
but a similar opinion and perception and not on any
substantial basis. It was not the case of the Disciplinary
Authority that the inquiry officer had overlooked certain
documents. As is evident from the Inquiry Officer's
Report that it was not a case of arriving at a finding based
on appreciation of detailed evidence but on assessment of
documentary evidence. The Disciplinary Authority merely
because it had a different view cannot be made a ground
for coming to a disagreement against an Inquiry Officer's
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Report and be made a tool for imposing a penalty.
5.3 Even otherwise, facts indicate that the Appellate
Authority who ruled in the favour of the petitioner in
upholding his quasi judicial decision was also issued a
charge-sheet. However, it has come on record that the
State Government by an order dated 31.01.2017, in
respect of the same transaction which was a subject
matter of a quasi judicial proceeding withdrew and
dropped the departmental proceedings against the
Appellate Authority. Having done so, there was no reason
why the petitioner could have been proceeded further
and a penalty be imposed on him for the subject matter of
the same transaction. What is also evident from the
records of the case especially in reading the order of a
Co-ordinate Bench of this Court in the case of Shah
Bipinchandra Ratilal & Ors., vs. State of Gujarat &
Ors., in Special Civil Application No. 20605 of 2015 is
that in appreciating the dispute where the orders of the
SSRD dated 29.09.2015 in the revision applications were
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challenged with regard to the disputed mutation entry,
the Court after appreciating the facts of the case in para
3 & 3.1 to 3.14, the Court observed as under :
" 12. Having considered the submissions made on
behalf of both the sides coupled with the material
placed on record and the decisions cited at bar, it
reveals that there is no dispute regarding the
constitution of the partnership firm in the name of
M/s Kamani Chemical Works initially in the year
1984 with 11 partners. There is also no dispute
regarding the death of Nutankumar Ratilal Shah in
the year 1992. The question regarding
reconstitution of the firm after his death having 9
partners and subsequent dissolution of the firm by
remaining 7 partners is the bone of contention
between the petitioners and private respondent
no.3. At this stage, it is pertinent to note that private
respondent no.3 has already filed Civil Suit for
cancellation of the sale deed as well as for her
alleged share in the land in question on the basis of
the partnership firm. It is also admitted facts that at
present the land in question has already been sold
by the petitioner to the respondent nos.4 and 5 (who
are petitioners in Special Civil Application No.19862
of 2015).
13. The limited question is regarding the making of
revenue entry on the basis of the dissolution deed
and the observations of the learned Collector as well
as learned SSRD as to necessity of registration of
the dissolution deed. In this regard, it is worth while
to refer the observations of this Court in the case of
Anil Engineering Works V.s Competent Authority
and Deputy Collector, ULC and Another, wherein
while relying upon the decision of the Supreme
Court in the case of S.V.Chandra Pandian and
Others V.s S.V.Shivalinga Nadar and Others,
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wherein this Court has observed that when
dissolution of the partnership firm takes place and
the residue is distributed amongst the partners,
there is no partition, transfer or extinguishment of
interest attracting Section 17 of the Registration
Act. It was further observed that the dissolution of
the partnership firm does not involve any transfer of
interest in any property including any immovable
property and document of dissolution does not
require registration under the law of Registration.
14. The Andhra Pradesh High Court in the case of
M/s.Samyuktha Cotton Trading Co. (Supra) was
dealing with question as to whether the registration
of an instrument is needed either by the
contributing an item of immovable property towards
the share of an individual while joining a firm, or for
relinquishing it at the time of retirement from it, it
has observed that any instrument relinquishing right
in an immovable property belonging to the firm need
not be registered. To arrive at this conclusion, the
Andhra Pradesh High Court has specifically
observed in para 13 and 14 as under:-
"13. In A. Narayanappa v. B. Krishtappa, , it was
held that once a partnership firm is constituted, the
assets held by it merge into one unit, and that no
partner can claim any exclusive rights as regards an
identified property comprised in the assets of the
firm. The principle was summed up as under :
"In determining whether transfer of shares of
partnerships which hold immovable property among
other assets, require registration the Court must be
influenced by the policy of the Partnership Act. The
legal conception of the share of a partner in a
partnership cannot be assessed in our opinion, by
reference to the possibility of his getting a share in
the immovable property possessed by the
partnership, for his getting a share in the immovable
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property is only an uncertain factor.
A Full Bench of the Lahore High Court in the case of
Ajudhia Pershad v. Shamsunder, ILR (1947) Lah 417
= AIR 1947 Lah. 13, held that the interest of a
partner in partnership assets comprising of movable
and immovable property would be treated as
movable property. We are in agreement with the
view expressed in the above.
Our answer to the question referred to is that the
interest of a partner in partnership assets cannot be
regarded as a right or interest in immovable
property within the meaning of Section 17(1)(b) of
the Registration Act."
14. The same decision became the subjectmatter of
appeal before the Supreme Court reported in
Addanki Narayanappa and another v. Bhaskara
Krishnappa (dead) and Ors., and it was approved.
Similar view was expressed by the decisions
rendered in Commissioner of Income-Tax v. Amber
Corporation, ; and in . Hence, the contentions of the
1st respondent cannot be accepted."
15. Thus, so far as the contentions raised by the
private respondent no.3 and the observations of the
Collector and the learned SSRD regarding necessity
of registration of the dissolution deed is concerned,
same is not sustainable in the eyes of law.
16. It also appears from the record that as per the
original partnership deed, page no.42, the
partnership firm was to continue at will and any
partner can retire from the firm by giving notice or
even by oral expression. There was also clause that
in case of retirement of any partner, the partnership
firm may be continued. It also reveals from the
records that earlier some notices were issued by the
Dhankunwarben and four others wherein there is no
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mention of the property relating the M/s Kamani
Chemical Works. It also reveals that on
reconstitution of the partnership firm, necessary
intimation was given to the Kalupur Bank and it was
also intimated to the Registrar of Firms at the
relevant time. The documentary evidence also
suggests that the firm was dissolved by the deed
which does not require any registration. It also
reveals that the on the basis of that deed, mutation
entry was made and confirmed. It also reveals that
the said firm has also issued public notice inviting
public at large to approach the firm within 15 days if
anybody has any right, title or interest against the
firm. This factum does suggest that public notice
was issued and none has filed any objection
including the respondent no.3. At this juncture, it is
pertinent to note that during the course of
argument, the respondent no.3 has tried to show
that there were two firms Kamani 1 and Kamani 2.
However, the submissions that there were two firms
are not pleaded in the Civil Suit itself which has
been filed by the respondent no.3 before the Civil
Court. Even in the affidavit in reply, the respondent
no.3, has not put forward the defense that there are
two firms Kamani 1 and Kamani 2. From the
documentary evidence produced in the matter, it
clearly appears that there was only one firm and due
to death of one of the partners in 1992, the firm was
reconstituted inducting one partner and retiring two
partners as per their oral wish and thereafter, out of
9 partners two partners have died and therefore
remaining 7 partners had dissolved the firm and
necessary mutation entry giving shares in individual
partners, according to their shares, in the
partnership firm was made. This action of the
revenue authority cannot be said to be illegal one.
17. It is submitted by the respondent no.3 that these
entries had been made due to corrupt practice
adopted by the Revenue Officers and for that inquiry
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has been initiated against the concerned Revenue
Officers and therefore, the entry needs to be
cancelled on that basis only. The initiation of any
departmental proceeding against Erring
Government Officer has nothing to do with the right
of a person based on a documentary evidence.
Initiation of the proceedings against the concerned
revenue authority does not ipso facto suggest that
the dissolution of the firm as alleged by the
petitioners is illegal. Therefore the submissions on
this count made on behalf of respondent no.3 is not
acceptable.
18. Thus, considering the facts and circumstances of
this case, it is clearly found that the Deputy
Collector has rightly rejected the RTS Appeal filed
by the respondent no.3 against the challenge of
entry no.3262. The learned Collector as well as the
learned SSRD has misdirected themselves for
insistence of registration of the dissolution deed and
has committed error of facts and law in setting aside
the order of the learned Deputy Collector. The
orders of the learned Collector as well as learned
SSRD are not sustainable in the eyes of law and
therefore both the orders deserves to be quashed
and set aside and the order of the learned Deputy
Collector needs to be restored of course with the
observation that the entry would be subject to the
outcome of the Civil Suit pending between the
parties and the Civil Court shall decide the suit in
accordance with law."
6 In light of this position, when even on the judicial
side the entry and the mutation exercise had received
approval including while examining the case by this
Court, there is no reason why the order of penalty can be
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sustained.
7 For the aforesaid reasons, the petition is allowed.
The order of penalty dated 03.02.2015 passed by the
State Government and the communication dated
20.12.2017 of the petitioner's reconsideration by which
the application for such reconsideration was rejected are
quashed and set aside and the petition is allowed. Rule is
made absolute accordingly with no orders as to costs.
(BIREN VAISHNAV, J)
BIMAL
