Gujarat High Court
State Of Gujarat vs Legal Heirs Of Nalinbhai ... on 2 September, 2023
Bench: Aniruddha P. Mayee
NEUTRAL CITATION
C/CA/1075/2023 ORDER DATED: 02/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 1075 of 2023
In F/LETTERS PATENT APPEAL NO. 20453 of 2023
With
F/LETTERS PATENT APPEAL NO. 20453 of 2023
In SPECIAL CIVIL APPLICATION NO. 18809 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In F/LETTERS PATENT APPEAL NO. 20453 of 2023
In SPECIAL CIVIL APPLICATION NO. 18809 of 2017
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STATE OF GUJARAT
Versus
LEGAL HEIRS OF NALINBHAI KESHAVJIBHAI RAJANI
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Appearance:
MR UTKARSH SHARMA AGP for the Applicant(s) No. 1,2,3,4,5,6
for the Respondent(s) No. 1,2,3
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1.1,1.2,1.3
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 02/09/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. This intra-court appeal is delayed by 473 days. The
explanation offered in the affidavit accompanying the delay
condonation application of the administrative delay is not to the
satisfaction of the Court. Even otherwise, on merits, suffice to note
that the proceeding, out of which the writ petition arose, was
mutation proceeding, based on the sale deed dated 12.07.2007. It
NEUTRAL CITATION
C/CA/1075/2023 ORDER DATED: 02/09/2023
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seems that the Mamlatdar had refused to make entry of the name
of the vendees in the revenue record on the premise that the
registered sale deed was executed in breach of the condition of the
occupancy certificate granted in favour of the predecessor in
interest of the vendors. A direction was also given to remove the
entry of the name of the vendors in the revenue record.
2. The learned Single Judge has recorded in the judgment
impugned that the entries in the name of the vendors were made in
the year 1952 and the same cannot be reviewed after a period of
more than 50 years by cancellation, under Section 106 of the
Gujarat Land Revenue Code, 1879 ("Revenue Code" for short).
Moreover, no proceedings under the Revenue Code or any other Act
have been initiated for breach of condition of the occupancy
certificate, though the entries are sought to be cancelled on the said
ground. While observing the same, the learned Single Judge has
further recorded that the revenue authority cannot delve upon the
question of right by cancellation of revenue entries. However, a
liberty is granted to the revenue authority, i. e. the competent
authority to undertake the proceedings in accordance with law, as
per the relevant statute/rules, subject to the period of limitation. A
liberty is also granted to the parties to raise all contentions, in case
such proceedings are initiated.
3. The learned Assistant Government Pleader, while challenging
the order passed by the learned Single Judge, would submit that the
refusal to make entry of the name of the vendees based on the sale
deed, was in exercise of power under Section 135(D) of the Revenue
Code which empowers the designated officer to refuse to make the
mutation entry which violates or contravenes any of the provisions
NEUTRAL CITATION
C/CA/1075/2023 ORDER DATED: 02/09/2023
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of the Act. The submission is that the sale deed in question has
been executed in violation of the condition of the occupancy
certificate and as such, the refusal by the Mamlatdar of the entries
sought by the petitioners based on the said sale deed cannot be
said to suffer from any error of law.
4. Dealing with this submission, suffice to note that Section
135(D)(8) which is relied upon by the learned Assistant Government
Pleader has been inserted in the Revenue Code by an amendment
which came into force on 31.03.2010. The sale deed in question is
of the year 2007 and the mutation application was also filed prior to
the enforcement of the said provisions. More so, there is no
challenge to the finding returned by the learned Single Judge that
no proceedings under any provision of the Revenue Code or any
other Act, on the ground of breach of condition of the occupancy
certificate, has been initiated to declare the sale deed as invalid. In
such a situation, the Mamlatdar or the Revenue Authority had no
jurisdiction to refuse to make entry of the transfer made by
registered sale deed. Moreover, the continuing entry in the name of
the vendors of the sale deed could not have been cancelled on the
premise of breach of condition of the occupancy certificate by the
Mamlatdar, without there being any adjudication by a competent
authority under the relevant Act.
5. For all the aforesaid reasons, we do not find any merit in the
Appeal. The Appeal is dismissed both on the grounds of delay and
on merits. The Civil Application for stay does not survive and stands
disposed of, accordingly.
NEUTRAL CITATION
C/CA/1075/2023 ORDER DATED: 02/09/2023
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6. It is clarified that the observations made by us herein above or
any of the observations made by the learned Single Judge in the
judgment impugned will not come in the way of the parties, in case
the proceedings are initiated, which shall obviously have to be
concluded, strictly in accordance with law.
(SUNITA AGARWAL, CJ )
(ANIRUDDHA P. MAYEE, J.)
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