Shantiben Babubhai @ Chhaganbhai ... vs State Of Gujarat
2023 Latest Caselaw 7421 Guj

                                                                                    NEUTRAL CITATION




    C/SCA/7947/2019                              CAV JUDGMENT DATED: 07/10/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7947 of 2019
                                   With
                R/SPECIAL CIVIL APPLICATION NO. 2454 of 2022
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 24341 of 2022
                                   With
              CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023
                                     In
               R/SPECIAL CIVIL APPLICATION NO. 24341 of 2022
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 26539 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

===============================================================

1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

2 To be referred to the Reporter or not ? No

3 Whether their Lordships wish to see the fair copy No of the judgment ?

4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================================ SHANTIBEN BABUBHAI @ CHHAGANBHAI PATEL D/O GANDABHAI DEVABHAI PATEL Versus STATE OF GUJARAT ================================================================ Appearance:

DR. SHAILESH R. PATEL(6044) for the Petitioner(s) No. 1,3,4,5,6,7,8 MR BM MANGUKIYA(437) for the Petitioner(s) No. 2.1,2.2,2.3,2.4,2.5 VIRAL K SHAH(5210) for the Petitioner(s) No. 1,2,3,4,5,6,7,8

MR AFTABHUSEN ANSARI(5320) for the Respondent(s) No. 7,8 MR DIPEN DESAI(2481) for the Respondent(s) No. 9 MR HRIDAY BUCH(2372) for the Respondent(s) No.

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11,12,13,14,15,16,17,18,19,20,21,22,23,24,25 NOTICE SERVED BY DS for the Respondent(s) No. 10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,3,4,5,6 ================================================================

CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date : 07/10/2023

CAV JUDGMENT

1. Special Civil Application No.7947 of 2019,

Special Civil Application No.2454 of 2022 and

Special Civil Application No.26539 of 2022 are

preferred to challenge the order dated 18th

February, 2019 passed by the Special

Secretary, Revenue Department (for short 'the

SSRD') in Revision Application No.124 of 2017

filed by Valiben Dahiyabhai-petitioner of

Special Civil Application No.26539 of 2022 and

Revision Application No.130 of 2017 filed by

Dinbandhu Dinanath.

2. The land bearing Survey No.320 of

Village:Vesu, Takuka: Surat City, Majura,

District:Surat admeasuring 40200 Sq.Mtrs is

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the subject matter of these petitions.

3. Survey No.320 is a new survey number in

view of the resurvey which took place in the

year 1992-93 whereby, the land bearing Survey

Nos.497 and 499 were merged.

3.1. History with regard to Survey No.497 is

as under :

(i) Dolatsinh Prabhatsinh was holding

the land admeasuring 4 Acres and 33

Gunthas of Survey No.497 since the year

1955-56.

(ii) On 26.05.1956, Dolatsinh

Prabhatsinh executed a registered sale-

deed No.1101 in favour of Gambhirsinh

Gomansinh and Bai Gulabben-widow of

Jesingbava Khushalbava for the said

land and Mutation Entry No.126 dated

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25.10.1956 was entered into revenue

record in favour of Gambhirsinh

Gomansinh and Bai Gulabben-widow of

Jesingbava Khusalbava on the basis of

the registered sale-deed dated

26.05.1956.

(iii) Thereafter, Gambhirsinh Gomansinh

and Bai Gulabben widow of Jesingbava

Khusalbava executed a registered sale-

deed1241 dated 11.06.1956 in favour of

Gandabhai Kanjibhai and minor Amratlal

Samubhai. Mutation Entry No.127 dated

25.10.1956 was entered into the revenue

record with regard to the transaction

of sale dated 11.06.1956.

          (iv)     Gandabhai        Kanjibhai          relinquished

          his      right      in       favour         of        Amratlal

Samubhai and Revenue Entry No.506 dated

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12.07.1956 was mutated deleting the

name of Gandabhai Kanjibhai.

(v) Amratlal Samubhai passed away on

31.01.1967. Revenue Entry No.617 dated

02.05.1968 was mutated in revenue

record entering the name of Samubhai

Kanjibhai-father of late Amratlal

Samubhai as legal heir.

(vi) The Superintendent of land record

prepared Durasti Patrak No.13 in the

year 1969 and accordingly, land of

Survey No.497 was admeasured as 4 Acres

24 Gunthas and Revenue Entry No.1034

dated 13th September, 1978 was mutated

in revenue record as against 4 Acres

and 33 Gunthas as per the "Prati Book"

prepared in the year 1951.

(vii) Map of Village:Vesu was prepared

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in the year 1978 showing the old Survey

Nos.497 and 499 situated at different

places and Survey No.499/3 was situated

between both the survey numbers.

3.2. History of Survey No.499/3 is that the

Agricultural land admeasuring 1 Acre and 14

Gunthas of Survey No.499/3 was originally

owned by Lakhiben Gandabha Devabhai from 1948-

49 to 1954-55 as per the Revenue Entry No.94

recording the Notification of the State

Government. As per the said entry, the land in

question fell under the provisions of Bombay

Prevention of Fragmentation and Consolidation

of Holdings Act, 1947.

3.3. History with regard to land bearing

Survey No.499 is as under :

Acres O Gunthas of Survey No.499 was of

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the ownership of Gopalbhai Dalpatbhai

and Ranchhodji Dalpatbhai Kalidas.

(ii) Gopalbhai Dalpatbhai executed a

sale-deed No.549 dated 24th March, 1956

for himself and as power of attorney

holder of Ranchhodji Dalpatbhai Kalidas

in favour of Dolatsinh Cheetabhai and

Surajben-daughter of Cheetabava

Nagjibava. Revenue Entry No.115 dated

30th June, 1956 was mutated into the

revenue record with regard to the sale-

deed No.549 dated 24.03.1956.

(iii) Dolatsinh Cheetabhai and

Surajben-daughter of Cheetabava

Nagjibava executed the sale-deed

No.1042 dated 21.05.1956 in favor of

Vijayaben-daugher of Jasmatbhai

Bhikhabhai with respect to the said

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land. Revenue Entry No.125 dated

25.10.1956 was entered into the revenue

record with regard to the said

registered sale-deed. Vijayaben-

daugher of Jasmatbhai Bhikhabhai passed

away on 29.10.1970. Revenue Entry

No.732 dated 06.04.1972 was mutated in

revenue record mutating the name of

legal heir of Vijayaben-daugher of

Jasmatbhai Bhikhabhai namely Samubhai

Kanjibhai with regard to the said land.

3.4. In the year 1979, Valiben Dahiyabhai,

Laxmiben @ Lakhiben Kantibhai, Dinbandhu

Dinanath and their predecessors prepared a

measurement sheet on 26th June, 1979 and Hissa

Form No.4 with respect to the Survey No.497

Acres and 33 Gunthas but the occupants are in

possession of land admeasuring 6 Acres and 37

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Gunthas.

3.5. Thereafter, Samubhai Kanjibhai executed a

sale-deed No.1965 dated 31.03.1980 with

respect to the land bearing Survey No.497

admeasuring 4 Acres and 24 Gunthas and Survey

No.499 admeasuring 3 Acres in favour of

Dinanath Poonamchand. In the sale-deed it was

mentioned that there was a mistake in the

measurement of Survey No.497 and process was

going on for correction of the same and the

seller received the whole consideration. Heirs

of deceased Samubhai Kanjibhai i.e. Valiben,

Laxmiben and Dinbandhu Dinanath signed the

sale-deed as witness. Revenue Entry No.1097

dated 12.09.1980 was entered into the revenue

record recording the registered sale-deed

No.1965 dated 31.03.1980. It appears from the

record that Revenue Entry No.1251 dated 20th

September, 1984 was mutated showing the Survey

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No.497 admeasuring 6 Acres and 37 Gunthas as

per the Hissa Form No.4.

3.6. Thereafter, Mutation Entry No.1441 dated

24.05.1989 was entered into the revenue record

with respect to the Survey No.497 recording

that Uttamram Bhagwandas is having the half

share in the property as per the application

given by Dinanath Poonamchand. Thereafter, the

resurvey took place in the year 1992-93 and

old Survey Nos.497 and 499 were merged to form

New Survey No.320. As per the "Khetvad Patrak"

prepared after resurvey of the year 1992-93,

Acres and 24 Gunthas and Old Survey No.499 was

showing admeasuring 3 Acres. As per the "Kayam

Khardo" prepared in the year 1992, Old Survey

No.497 was showing admeasuring 4 Acres and 24

Gunthas.

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3.7. Town Planning Scheme No.7 (Vesu-Magdalla)

was made applicable to Survey No.320 as per

the public notice dated 02.07.1994 in the

Newspaper.

3.8. As per Form F prepared under the Town

Planning Scheme No.7 (Vesu-Magdalla), the

Survey No.497 was showing 30,166 Sq.Mtrs.

3.9. Dinanath Poonamchand passed away on

07.04.2000 and Revenue Entry No.2390 dated

03.05.2000 was mutated in revenue record in

names of legal heirs of Dinanath Poonamchand

namely (i) Pravinaben-widow of Dinanath

Poonamchand (ii) Dinbandhu Dinanath and (iii)

Deepikaben @ Dimpleben Dinanath.

3.10. Uttamram Bhagwandas relinquished his

rights in land bearing Survey No.320 in favour

of legal heirs of Dinanath Poonamchand and

Revenue Entry No.2558 dated 17.05.2001 was

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entered into revenue record deleting his name.

3.11. On 19th January, 2010, legal heirs of

Dinanath Poonamchand made an application for

entering the names of Anupamaben Dinbandhu

Dinanath-widow of Dinbandhu Dinanath, minor

Abhishek Dinbandhu, minor Yashswi Dinbandhu

and minor Dharmapal Dinbandhu in revenue

record and Mutation Entry No.5809 dated

27.01.2010 was made in revenue record

recording the same. Pravinaben Dinanath

Poonamchand passed away on 22.04.2011. Before

her death, she executed a registered Will

whereby, her share was bequeathed in favour of

Dinbandhu Dinanath and Revenue Entry no.6814

dated 14.06.2012 was made in revenue record to

that effect. Objections were raised with

regard to Mutation Entry No.6814 dated

14.06.2012. The Mamlatdar registered the case

as RTS/Objection Case NO.100/2012. By order

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dated 15.01.2012 passed by the Mamlatdar, the

objections were allowed with a direction not

to certify Mutation Entry No.6814 dated 14th

June, 2012 with respect to Survey No.320.

3.12. Thereafter, Mutation Entry No.6821 dated

15th June, 2012 was entered in revenue record

entering the names of legal heirs of late

Pravinaben-widow of Dinanath Poonamchand

namely (i) Dinbandhu Dinanath and (ii)

Deepikaben @ Dimpleben Dinanath whose names

were already on record. Therefore, the name of

Pravinaben Dinanath was deleted.

3.13. In the meanwhile, application dated

17.02.2010 was made by legal heirs of

Lakhiben-widow of Gandabhai Devabhai namely

Thakorbhai Gandabhai and others through their

power of attorney Shaileshbhai Dhanubhai

Chowdhari to the Deputy Collector, City Prant,

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Surat stating that land bearing Survey

No.499/3 admeasuring 1 Acre and 5 Gunthas and

Kharabo land admeasuring 09 Gunthas, total

admeasuring 1 Acre and 14 Gunthas was in name

of Lakhiben-widow of Gandabhai Devabhai.

However, it appears that during resurvey, the

land bearing Survey Nos.497 and 499 merged

together to form a New Survey No.320 and by

mistake, Survey No.499/3 admeasuring 1 Acre

and 14 Gunthas was not separated. Therefore,

the application was made to do the measurement

with respect to Survey Nos.320 comprising Old

Survey Nos.497 and 499 and separate the land

bearing Survey No.499/3 admeasuring 1 Acre and

14 Gunthas out of the Survey No.320.

3.14 The Deputy Collector, City Prant, Surat

called for relevant record from the Office of

the District Inspector Land Record (for short

'the DILR') and reports/opinions from all the

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concerned departments. As per the report sent

from the Office of the DILR dated 19.10.2011,

it was stated that the land bearing Old Survey

No.497 was 4 Acres and 33 Gunthas from 1955-56

to 1972-73 but as per the Mutation Entry

No.1251 dated 20th September, 1984, the Survey

No.497 is showing 28,025 Sq.Mtrs instead of

19,526 Sq.Mtrs without there being any record

or order regarding the change of such

measurement on the basis of the Hissa Form 4.

3.15. Considering the submissions of all

parties, reports from the Office of the DILR

and original record from the year 1948-49 till

the year 2014, the Deputy collector came to

the conclusion that name of Lakhiben-widow of

Gandabhai Devabhai has not been entered into

the revenue record from the year 1955-56 with

respect to Survey No.499/3 admeasuring 1 Acre

and 14 Gunthas and therefore, by order dated

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11.12.2014 directed the Mamlatdar to enter the

name of Lakhiben with respect to land

admeasuring 1 Acre and 14 Gunthas in resurvey

No.320 and further stated that since T.P.

Scheme is applicable to this land, OP number

and FP number will be decided by the Urban

Development Officers.

3.16. In the meanwhile, Dinbandhu Dinanath

filed Regular Civil Suit No.210 of 2012

against Dimpleben Dinanath with respect to

Survey No.320 before the 14th Additional Civil

Judge, Surat. Valiben Dahiyabhai and Laxmiben

@ Lakhiben Kantibhai filed application Exh.29

for joining as party defendant which was

rejected by order dated 4th March, 2014 on the

ground that they have no right or interest

with respect to Survey No.320. The said order

was challenged by preferring Special Civil

Application No.7871 of 2014 before this Court

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which was withdrawn on 22.08.2014 with a

liberty to file substantive Suit. However, no

such Suit has been filed till date.

3.17. In view of the order dated 11th February,

2014 passed by the Deputy Collector, Revenue

Entry No.7640 was mutated on 19.12.2014

showing the name of Lakhiben-widow of

Gandabhai Devabhai with respect to the land

admeasuring 1 Acre and 14 Gunthas out of

Survey No.320. The said entry was certified on

31.01.2015. Being aggrieved and dis-satisfied

by order dated 11.12.2014 passed by the Deputy

Collector, City Prant, Surat, Valiben

Dahiyabhai-daughter of Samubhai Kanjibhai and

others preferred Revision Application No.70 of

2015 before the Collector along with an

application for stay. By order dated

13.10.2017, the Collector rejected the

application No.70 of 2015 confirming the order

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dated 11.12.2014 passed by the Deputy

Collector. Revenue Entry No.8604 dated

02.11.2017 was entered into the revenue record

giving effect to the order dated 13.10.2017

passed by the Collector. It appears that in

the meanwhile, registered sale-deed was

executed on 08.05.2017 by Shantiben Babubhai,

Naginbhai Gandabhai Patel, Sumenben,

Champaben, Bhanuben, Sonalben and Dinesh

Thakorbhai Patel in favour of Devenbhai

Mafatlal Patel.

3.18. Valiben Dahiyabhai-daughter of Samubhai

Kanjibhai and others filed Revision

Application No.124 of 2017 before SSRD

challenging the order dated 13.10.2017 passed

by the Collector. Dinbandhu Dinanath also

preferred Revision Application No.130 of 2017

before the SSRD challenging the same order.

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3.19. The SSRD by common order dated

18.02.2019 quashed and set aside the order

passed by the respondent No.2-Collector and

directed him to make an inquiry afresh and

till then, directed the parties to maintain

status-quo. Being aggrieved by order dated

18.02.2019, Special Civil Application Nos.7947

of 2019, 2454 of 2022 and 26539 of 2022 are

filed.

3.20. It appears that before implementation of

the order dated 18.02.2019, Revenue Entry

No.9898 was mutated in revenue record upon

death of Naginbhai Gandabhai, one of the legal

heirs of Lakhiben and names of his survivors

Babliben Naginbhai and others was mutated.

3.21. Thereafter, an application was made to

implement the order dated 18.02.2019 by

Devenbhai Mafatlal Patel who purchased the

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land admeasuring 5,463.25 Sq.Mtrs vide

registered sale-deed No.141 of 2015 of Survey

No.320 as stated above. The Collector passed

an order dated 11.03.2022 cancelling the

Mutation Entry No.9898 in view of the order of

status-quo passed by the Revenue Secretary

till the inquiry was conducted and further

directed to give effect to the order dated

18.02.2019 in the revenue record.

3.22. Therefore, the Mamlatdar passed an order

dated 25.03.2022 by mutating Revenue Entry

No.10074 deleting the name of Devenbhai

Mafatlal Patel as registered owner and only

names of Dipikaben and Dinbandhu Dinanath

continued in the revenue record without

issuing any notice to the Devenbhai Mafatlal

Patel. The petitioner therefore filed a review

application before the Collector to clarify

that name of petitioner be restored to record.

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The Collector by order dated 17.06.2022

allowed the application. Dinbandhu Dinanath

challenged the said order by preferring an

application before the Collector being

Application No.25/2022. The Collector by

impugned order dated 02.11.2022 cancelled the

order dated 17.06.2022 by allowing the

application with further direction to

Mamlatdar, Surat City, Majura not to pass any

entry till the final disposal of the remand

case. It was also observed that the outcome of

Special Civil Application No.7947 of 2019 and

Special Civil Application No.2454 of 2022

pending before this Court shall be binding to

all the parties.

3.23. Devenbhai Mafatlal Patel has preferred

Special Civil Application No.24341 of 2022

challenging the order dated 02.11.2022 passed

by the Collector. Civil Application No.1 of

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2023 in Special Civil Application No.24341 of

2022 is filed to set aside the notice dated

16.03.2022 issued by the DILR for measurement

of the land in question in view of the pending

proceedings.

4. Learned Senior Advocate Mr.Anshin Desai

assisted by learned advocate Mr.Viral K. Shah

for the petitioners, learned Assistant

Government Pleader Ms.Hetal Patel for the

respondent-State, learned Senior Advocate

Mr.S.N.Soparkar assited by learned advocate

Mr.Dipen Desai for the petitioner of Special

Civil Application No.2545 of 2022-Dinbandhu

Dinanath Prajapati, learned advocate

Mr.B.M.Mangukia with learned advocate Mr.Nirad

Buch for the respective petitioners and

respondents in the matters were heard.

5. The facts of the case are in very narrow

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compass. The SSRD after considering the facts

and submissions of the respective parties has

remanded the matter back to the Collector vide

order dated 18.02.2019 on the ground that

proper inquiry was required to be made with

regard to the measurement of Old Survey

Nos.497, 499 and 499/3. The SSRD has also

considered that bogus Hissa Form was made and

thereafter, registered sale-deed is executed

and ownership cannot be obtained on the basis

of the possession. It has also observed that

on perusal of the map, the land was without

any survey number belonging to the Government

without there being any order by mutating the

ademesurement as 6 Acres and 37 Gunthas of

Suvey No.497 which was actually 4 Acres and 24

Gunthas. The SSRD has therefore rightly come

to the conclusion that proper inquiry is

required to be made with regard to the land in

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question and the Deputy Collector and

Collector could not have ordered to mutate the

name of Lakhiben and Valiben in respect of the

land admeasuring 1 Acre and 14 Gunthas in

absence of the inquiry. The SSRD has therefore

rightly remanded the matter back to the

Collector by quashing and setting aside the

order dated 13.10.2017 passed by the Collector

and directed to reconsider the entire matter

while adjudicating the appeals arising out of

the order dated 11.12.2014 passed by the

Deputy Collector and ordered to maintain the

status-quo qua the land in question till such

inquiry is conducted by the Collector in the

pending appeals arising out of the order dated

11.12.2014 passed by the Deputy Collector.

6. Therefore, no interference is called for in

the impugned order of the SSRD dated

18.02.2019 passed in Revision Application

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Nos.124 and 130 of 2017.

7. Similarly, so far as Special Civil

Application No.24341 of 2022 is concerned, the

Collector has only directed the Mamlatdar not

to pass any entry in the revenue record till

the final disposal of the remand matter made

by the SSRD as well as the order to be passed

by this Court in pending Special Civil

Applications arising out of the remand order

passed by the SSRD. Therefore no interference

is called for in the impugned order dated

02.11.2022 passed by the Collector.

8. The Collector is therefore directed to

complete the inquiry as per the remand order

passed by the SSRD in respect of the

measurement of the land in question so as to

adjudicate upon the order dated 11.12.2014

passed by the Deputy Collector. The parties

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are directed to maintain status-quo with

regard to the land in question as per the

impugned order passed by the SSRD. Such

exercise shall be completed within six months

from the date of receipt of the copy of this

order.

9. At this stage, it is required to be noted

that Civil Application No.2 of 2023 was filed

by the petitioner-Devenbhai Mafatlal Patel of

Special Civil Application No.24341 of 2022

with a prayer to place on record the further

developments and to appreciate and consider

such developments while passing this order.

Reference was made to the order passed in

Special Civil Application No.23710 of 2022

which is not the subject matter of this

petition. However, it is clarified that the

Collector, Surat is to compete the inquiry

proceedings as directed by the SSRD and

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consequential order shall be passed to that

effect and all other and further orders which

are passed after 10.04.2023 shall be subject

to outcome of this order as a consequence of

the inquiry to be conducted by the Collector

and the order to be passed after giving

opportunity of hearing to all concerned. The

petitions are accordingly disposed of. Notice

is discharged. Civil Application also stands

disposed of accordingly.

(BHARGAV D. KARIA, J)

PALAK