Desai (Rabari) Rajendrakumar ... vs State Of Gujarat
2023 Latest Caselaw 677 Guj

     C/SCA/6218/2022                               ORDER DATED: 25/01/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6218 of 2022
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           DESAI (RABARI) RAJENDRAKUMAR HARGOVANBHAI
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1,2,3
MR JAYNEEL S. PARIKH, AGP for the Respondent(s) No. 1
MR HET N SHAH(11211) for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 25/01/2023
                   ORAL ORDER

1. Rule. Learned advocates appear and waive service of notice of rule on behalf of the respective respondents.

2. Since a short issue is involved in the present writ petition, the same is taken up for final hearing today.

3. In the present writ petition, the petitioners have prayed for the following reliefs.

"20. (A) ) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the impugned order dated 03.01.2021 is passed by the respondent no.2 (At Annexure-I COLLY) and further be pleased to direct the respondent no.2 to certify entry no.15475 mutated in the revenue record qua the land situated at survey No.208 admeasuring 00-72- 00 Hectare - RA - Sq. is Mts. of Village: Gungadipati, Taluka & Dist. Patan"

4. The brief facts giving rise to filing of the present petition are that the dispute pertains to the lands situated at revenue survey No.208 admeasuring 00-72-00 Hectare - RA - Sq. Mts. (Out of total 01-30-81 Hectare - RA - Sq. Mts.) of Village : Gungadipati, Taluka & Dist. Patan (Hereinafter referred to as

C/SCA/6218/2022 ORDER DATED: 25/01/2023

the "land in question"). The land in question was of original ownership of one Patel Vitthal Amichand and thereafter, the name of Patel Hema Joita was mutated in the revenue record vide entry No.616 (24) dated 26.03.1957 as a tenant of the land in question.

5. Learned advocate Mr.Gandhi, appearing for the petitioners has submitted that Patel Hemabhai Joitabhai had six heirs and out of his six legal heirs, Bababhai Hemabhai and Umedbhai Hemabhai predeceased Patel Hemabhai Joitabhai. The entry No.4870 dated 19.01.1989 was mutated of the heirship of Patel Hemabhai. Thereafter, entry No.4926 dated 01.07.1989, the entry of relinquishment of rights were mutated, whereby, the names of all the other heirs of Hemabhai, except the heirs of Umedbhai i.e. Sureshbhai Umedbhai Patel, Savitaben Umedbhai Patel and Jadiben Wd/o Umedbhai Patel were deleted from the land in question. Thereafter, vide entry No.10265 dated 30.09.2002, the land in question was converted into old tenure land.

5.1 Learned advocate Mr.Gandhi, appearing for the petitioners has further submitted that the part of the land bearing Survey No.208 (Admeasuring 00-58-81 Hectare - RA - Sq. Mts.) came to be sold vide registered sale deed dated 25.10.2004 by Sureshbhai Umedbhai Patel, Savitaben Umedbhai Patel and Jadiben Wd/o Umedbhai Patel in favour of Patel Kantilal Bhagvandas, Patel Babulal Bhagvandas and Patel Kanayialal Bhagvandas. It is further submitted that entry No.12083 dated 26.10.2004 was mutated in the revenue

C/SCA/6218/2022 ORDER DATED: 25/01/2023

record and the same was certified on 16.12.2004. It is further submitted that vide heirship entry No.13699 dated 12.08.2011, the names of the heirs of Babubhai Bhagvandas Patel was mutated in the revenue record.

5.2 Learned advocate Mr.Gandhi, has further submitted that similarly the land in question was sold in favour of Bharvad Mevabhai Rajabhai vide registered sale deed dated 13.09.2002 and an entry No.12084 dated 03.11.2004 was mutated in the revenue record and the same was certified on 16.04.2004. It is further submitted that the names of purchasers are also mutated in the Village form no. 7/12 of the land in question. It is further submitted that purchaser Bharvad Mevabhai Rajabhai also obtained loan, for which entry No.14641 dated 30.04.2016 was mutated in the revenue record. It is respectfully stated and submitted that petitioners purchased the land in question by way of a registered sale deed dated 18.09.2021 from Bharvad Mevabhai Rajabhai. It is further submitted that the revenue entry No.15475 dated 10.11.2021 was mutated in the revenue record, however, the same was rejected by the respondent no.2, vide impugned order dated 03.01.2021. It is submitted that the impugned order dated 03.01.2021 is passed in gross violation of the principles of natural justice and the same may be quashed and set aside. Thus, while placing reliance on the judgment of this Court in the case of Balvant Ambaram Patel Vs. State of Gujarat, 2014 JX (GUJ) 1092 and has submitted that the Circle Officer cannot take such objection and he has to mutate the entry of the registered document i.e. the sale deed.

C/SCA/6218/2022 ORDER DATED: 25/01/2023

6. Learned AGP Mr.Parikh, has submitted that if the petitioner makes appropriate application, the same will be decided by the respondent authorities. It is submitted that however, at this stage, the impugned notice in the revenue record may not be set aside.

7. I have heard the learned advocates appearing for the respective parties.

8. The aforesaid facts, which are not in dispute that the entire case of the Circle Officer hinges on one Shri Bagabhai Hemabhai, who has relinquished his rights in the year 1989. In fact, it is established that no one has ever objected to the entries Nos. 4870, 4926, 12083 and 12084. None of the entries have been questioned either by any private persons or any respondent authorities and the Circle Officer while mutating the registered sale deed dated 18.09.2021 of the land in question, which is purchased by the petitioners has made such observations and has refused the certification. It is settled proposition of law that the Circle Officer cannot venture into such aspect and hence, only has to make the mutation based on the registered document.

9. At his stage, it would be apposite to incorporate the observations made by the Co-ordinate Bench in the case of Balvantrai Ambaram Patel (supra), wherein the Co- ordinate Bench has held thus :-

"6. Therefore in all cases of claims for mutation based on a registered document, the competent officer has to be entered the name of the claimant - owner - right

C/SCA/6218/2022 ORDER DATED: 25/01/2023

holder. The authority cannot insist for observing the requirements of Section 135-d apriori and on that basis declined to enter the name in the revenue records. The designated officer in charge of the said function has no jurisdiction to disregard the legal effect of the registered document, and he cannot be permitted to do so even indirectly. Once the petitioner purchased the land in question by virtue of registered sale deed, he is entitled to have his name mutated in the revenue records. The reasons given in the impugned order dated 04.02.2014 of the Mamlatdar for not mutating the entry and insisting for consent letters, etc., have no sanction of law and they do not hold good in light of the statutory provisions noted above."

10. Resultantly, the present writ petition is allowed. The observations recorded in the entry No.15475 by the Circle Officer is hereby quashed and set aside. The Circle Officer is directed to accordingly mutate and certify the entry of the sale deed dated 18.09.2021. Necessary mutation shall be made within a period of twelve (12) weeks from the date of receipt of writ of order of this Court. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(A. S. SUPEHIA, J)

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