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Gujarat High Court
Judgename :JAYANT PATEL
MITHUSINH SAMRATSINH PARMAR - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 1750 Of 2006
Decided On : 06/20/2006
Whether principles of res-judicata applies to administrative decisions.
Head Note :
Revenue Code - Sections 135-C, 135-D and 135(D)(2) - Gujarat Land Revenue Rules, - Rules 104, 105 and 106 - Mutation entry - Second entry - Certified by Mamlatdar - Revision - Setting aside mutation - Order of - Sustainability - Finding as to - The first mutation Entry No. 139 of survey No. 11 on basis of registered sale-deed was made on 23.12.1994 - Thereafter for the very transaction once again mutation Entry No. 145 was recorded on 20.02.1996 and it was certified by Deputy Mamlatdar on 30.03.1996 - The said Entry No. 145 was set aside on ground that competent authority had no power to enter any entry once again as barred by principle of res judicata - It is well settled that principle of res judicata applies where power is exercised by judicial or quasi judicial authority but not to any decision by administrative action in normal circumstances - In the facts of the case it appears that action of non-approval of entry was an administrative action on the part of the Deputy Mamlatdar, therefore, principle of res-judicata can not be applied to earlier decision of not approving the Entry No. 139 by District Collector as well as State Government - So far as rejection of revision by State Government on ground that petitioner was not agriculturist is concerned can not be sustained because no show-cause notice was given to petitioners on that ground - Since such ground was not in the show-cause notice matter can not be concluded in that regard Court kept open that said ground for decision at some appropriate stage - Court accordingly quashed and set aside the impugned orders passed by District Collector and its confirmation by State Government cancelling Entry No. 145.
Held :
It does appear from the record that the first action of non-approval of the Entry No. 139 was an administrative action on the part of the Deputy Mamlatdar. Neither the District Collector nor the State Government have found that any notice was issued to the petitioner before taking decision of non-approving the entry nor there is any finding that after such notice, the entry was transferred to the register of disputed cases and after hearing the affected parties, the decision was rendered by the competent authority. [Para 7]
Under these circumstances, the applicability of the principles of res judicata to the earlier decision of not approving the Entry No. 139 by the District Collector as well as the State Government is at error apparent on the face of record and the order to that extent cannot be sustained in the eye of law. Both the authorities have committed jurisdictional error by not considering that if the entry is not approved by aforesaid administrative action, again entry can be recorded for acquisition of rights by village accountant. [Para 8]
So far as the aspects for not maintaining the entry on the ground that the petitioner is not an agriulturist is concerned, no notice has been issued for cancellation of the Entry No. 145 on such ground and, therefore, the reasons recorded by the State Government while rejecting the revision for maintaining the order of the Collector is beyond the scope of the show-cause notice. Since there is no show-cause notice, on that ground, such aspects may not stand concluded and at this stage, since such ground was not in the show-cause notice, It would be necessary for this Court to conclude on the aspects as to whether, such entry can be maintained, if a person is an agriculturist in the other State or is not agriculturist. Such ground may be examined at an appropriate stage after considering the rights and contentions of both the sides including that of delay and of altering the position etc. and all such questions are kept open. [Para 9]
Law Laid Down :
Principles of res-judicata apply in a matter where power is exercised by judicial or quasi judicial authority - Principles analogous may apply but such principles in the normal circumstances would not apply to administrative action.
Conclusion :
Since there is no show-cause notice on the ground that mutation entry can not be sustained in favour of petitioner, as he is not agriculturist, the impugned order passed by State Government cancelling the mutation Entry No. 145 is not legal and liable to be set aside.
Decided in Favour of :
Petitioner
Appeal Partly Allowed
( 2 ) THE only question that arise in the present case for the consideration of the Court is whether the principles of res judicata will be applicable to the decision of the Revenue Authority on administrative side for non-approval of the entry ex-parte without giving any opportunity of hearing to the person concerned" to appreciate the aforesaid aspects, certain facts which can have the bearing to the present case are as under : The petitioner appears to have been purchased the land bearing Survey No. 11 vide Registered Sale Deed dated 07. 12. 1994 at village Dungarpur. It appears that based on the said Registered Sale Deed, Entry No. 139 was recorded in the Village Form No. 6 of Village Dungarpur on 23. 12. 1994. It appears that thereafter, for the very transaction, once again, mutation entry was recorded vide No. 145 on 20. 02. 1996 in Village Form No. 6. The said entry is certified by the Deputy Mamlatdar on 30. 03. 1996. It appears that thereafter, the District Collector, Bhavnagar, issued notice for exercise of revisional power. The show-cause notice was issued and thereafter, the District Collector found that the competent authority had no power to enter entry once again and the petitioner ought to have preferred the appeal against the first decision of not approving the entry and the entry is barred by the principles of res judicata and therefore, the second entry No. 145 is set aside. The petitioner carried the matter before the State Government by preferring revision and in the said revision, the State Government instead of considering the aspects of applicability of principles of res judicata, examined the matter on the ground that it was not examined by the competent authority that the petitioner is agriculturist or not. It is also mentioned by the State Government that the petitioner ought to have preferred an appeal against the non-approval of the Entry No. 139 and therefore, ultimately, the revision has been dismissed. It is under these circumstances, the petitioner has approached to this Court by preferring the present petition.
( 3 ) SECTION 135c of the Code provides for reporting of the acquisition of the rights by any person of the land. It is required for the person concerned to intimate the concerned village accountant whenever rights are acquired. However, if the person has acquired the right by virtue of a registered document, he is exempted from reporting to the village accountant.
( 4 ) SECTION 135d of the Act provides for mandatory requirement on the part of the village accountant to register all information which has been received by him under Section 135c of the Act. Sub-section 2 of Section 135d of the Act provides that whenever any entry is made, the same is required to be placed at the conspicuous place in the chavdi and written intimation is to be given to all persons appearing from the record of rights or register of mutations to be interested in the mutation. If the objections are received, such mutation is required to be transferred to the dispute register of disputed cases and if there is no objection, the entry may be approved by the higher officer. Such powers are to be exercised read with the relevant rule 104, 105 and 106 of the Gujarat Land Revenue Rules. Therefore, unless the entry is disputed, the same is in normal circumstances to be approved provided proper procedure is followed and necessary material is produced for acquisition of the rights. But thereby, it cannot be said that even if the transaction is is in breach of any statutory provision, the officer approving the entry is required to shut his eyes and to approve the entry. In the event, the officer before whom the entry is place for approval, prima facie find t
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