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Gujarat High Court
Judgename :A.N.Divecha
JANARDAN D.PATEL - Appellant
Versus
STATE - Respondent
SPECIAL CIVIL APPLICATION 3928 of 1990
Decided On : 04/19/1996
A bare perusal of Sec. 135L(2) clearly goes to show that what is to be inquired is the correctness of the entries in the record of rights and the register of mutations in accordance with the rules framed in that regard. It thus becomes clear that revenue authorities exercising powers with respect to RTS proceedings are invested with limited powers. They cannot assume to themselves certain powers not conferred to them by law. An authority having a limited jurisdiction cannot obviously expand its jurisdiction nor can assume jurisdiction not conferred on it by law. In that view of the matter, it has no power to decide the validity of a transaction on the touchstone of a statutory provision occurring in some other enactment.
The correct procedure to be followed would be to refer the matter to the authority empowered under the Tenancy Act for his decision. The necessary mutation entry may be made only after the decision of that authority under the Tenancy Act is received. It would however not be open to revenue authorities in RTS proceedings to decide that question.
[Para 10 & 11]
(b) Tenancy & Land Laws - Gujarat Land Revenue Rules, 1972 - Rule 108(6) - Revisional Jurisdiction - Exercise of - Same could not be exercised after expiry of reasonable period of 3 months - In each of the petition before Court revisional powers have been exercised by Deputy Collector beyond one year after the concerned mutation entry was made and certified - In view of the matter impugned orders can not be sustained.
It cannot be gainsaid that revisional powers under the relevant provisions contained in Rule 108(6) of the Rules are akin to those contained in Sec. 211 of the Code. What applies to Sec. 211 of the Code would apply with equal force to rule 108(6) of the Rules.
In each petition the revisional powers have been exercised by the Deputy Collector beyond one year after the concerned mutation entry was made and certified by the concerned Mamlatdar. This he could not have done in view of the binding ruling of the Supreme Court in the case of State of Gujrat vs. Patel Raghav Natha & Ors. and the aforesaid Division Bench ruling of this Court in the case of. Bhagwanji Bawanji Patel vs. State of Gujarat & Anr. reported in 1971 (12) GLR 156 In that view of the matter, the impugned order at Annexure D to each petition cannot be sustained in law. An order affirming an illegal and invalid order is of no consequence. In that view of the matter, the impugned orders at Annexures E and F to each petition affirming the impugned order at Annexure D to each petition cannot be sustained in law.
[Paras 8 & 9]
( 1 ) PRACTICALLY identical orders are challenged in all these petitions. Common questions of law and fact are found arising in all of them. I have, therefore, thought it fit to dispose of all of them by this common judgment of mine.
( 2 ) THE petitioner in each case has challenged the order passed by the Deputy collector of Dabhoi sometime in August/september 1983 as affirmed in appeal by the Collector of Baroda sometime in February 1984 as affirmed in further revision by the State Government (the respondent herein) by the order passed sometime on 11th January 1988. By his impugned order, the Deputy Collector at Dabhoi cancelled the mutation entry made and certified in the record of right pertaining to the subject-matter in each petition sometime during April to September 1981.
( 3 ) THE facts giving rise to these petitions move in a narrow compass. Each petitioner purchased the respective subject-matter of each petition by a registered sale deed executed during March and April 1981. Thereafter each petitioner moved the concerned Talati for mutation of his name in the record of right pertaining to the subject-matter of each petition. In each case the entry was made and certified during the period from April to September 1981 by the Mamlatdar of Vaghodia. It appears to have come to the notice of the Deputy Collector at Dabhoi. He appears to have found each entry not according to law. A show-cause notice thereupon came to be issued to each petitioner sometime during May, June and september 1983. A copy of the show-cause notice is at Annexure B to each petition. Thereafter, by the order passed sometime during August/september 1983, the Deputy Collector set aside the mutation entry certified by the Mamlatdar, vaghodia in each case. A copy of the aforesaid order passed by the Deputy collector is at Annexure D to each petition. Each aggrieved petitioner carried the matter in revision before the Collector of Baroda under Rule 108 (6) of the Gujarat land Revenue Rules, 1972 (the Rules for convenience) framed under the Bombay land Revenue Code, 1879 (the Code for brief ). By his order passed sometime in february and March 1984, the Collector of Baroda rejected it. Its copy is at annexure E to each petition. Each aggrieved petitioner carried the matter in further revision before the respondent under Rule 108 (6a) of the Rules. By the order passed by and on behalf of the respondent on 11th January 1988, each revisional application came to be rejected. Its copy is at Annexure F to each petition. Each aggrieved petitioner has thereupon approached this Court by means of each ones respective petition under Art. 226 of the Constitution of India for questioning the correctness of the orders at Annexures d, E and F to each petition.
( 4 ) LEARNED Government Counsel Shri Anand for the respondent has raised a preliminary contention regarding maintainability of these petitions under Art. 227 of the Constitution of India. Thereupon learned Counsel Kum. Shah for the petitioners has orally applied for leave to convert this petition as also under Art. 226 of the Constitution of India. Such oral request is accepted and each petition is ordered to be treated as also under Art. 226 of the Constitution of India on condition of payment of the deficit Court-fees, if any, within two weeks from today.
( 5 ) LEARNED Counsel Kum. Shah for the petitioner has submitted that the mutation entry could not have been set aside in exercise of the revisional powers after expiry of the reasonable period of 3 months from the date of its certification in view of the binding ruling of the Supreme Court in the case of State of Gujarat v. Patel Raghav Natha and Ors. , reported in 1969 GLR 992 (SC ). She has further urged that the Deputy Collector had no jurisdiction to examine whether or not the transaction was hit by any provision contained in any other enactment. According to her, if the transaction was in contravention of any other statutory provision con
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