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Gujarat High Court
Judgename :Jayant Patel
AGRICULTURAL PRODUCE MARKET COMMITTEE - Appellant
Versus
DEPUTY MAMLATDAR - Respondent
Special Civil Application 11675 Of 2004
Decided On : 09/14/2006
Civil Procedure Code – Facts of the case are that the petitioner is the purchaser of property bearing Survey No. 505 admeasuring 67077 Sq. mtrs. and another property bearing Survey No. 521 admeasuring 9915 Sq. mtrs. total 76,992 Sq. mtrs. situated at District aforesaid property came to be purchased by the petitioner as per Registered Sale Deed executed by the Official Liquidator, Gujarat on behalf of the Spinning Mills Ltd. and the said sale deed was executed in pursuance of the confirmation of the sale by this Court (Coram: A. R. Dave, J.) as per order in O. L. Report No. 12 of 2003 in Company Petition No. 328 of 1997 read with order of this Court in Company Application No. 413 of 2003 in Company Petition No. 328 of 1997. no dispute on the aforesaid aspects and also on execution of the sale deed in favour of the petitioner against the consideration of Rs. 97,02,750/ -. no dispute on the point that the aforesaid sale deed is registered with the Sub Registrar and the property in question is received by the petitioner pursuant to the sale deed –Held, learned Counsel appearing for the respondent No. 6 raised the contention that the order is passed by the Deputy Collector and the petitioner has the alternative remedy available of preferring revision before the Collector and thereafter, before the State Government as per the provisions of the Bombay Land Revenue Code and, therefore, he submitted that this Court may not entertain the petition and may relegate the petitioner to resort to alternative statutory remedy. It is true that in normal circumstances, by way of self-imposed restriction, this Court may not entertain the petition under Articles 226 and 227 of the Constitution of India, if the person concerned has alternative statutory remedy. However, it is also well settled that the existence of alternative remedy is not a bar to the power of this Court under Articles 226 and 227 of the Constitution of India. In the present case, the petitioner is statutory body who has purchased the land in question in pursuance of the order passed by this Court sitting as a Company Court and the sale deed is executed by the Official Liquidator in pursuance of the order passed by this Court and this Court is even as on today, seized with the winding up proceedings of the company in liquidation. Government company and the nationalised bank and as the larger question is involved for giving effect to the order of this Court by the Revenue Authority, it would not be a case to decline the entertainment and exercise of writ power of this Court under Article 226 on the ground of existence of alternative statutory remedy – Petition is allowed
( 1 ) LEAVE to amend the title of respondent No. 6 as madhya Gujarat Vij Company in place of the then Gujarat Electricity Board.
( 2 ) THE short facts of the case are that the petitioner is the purchaser of property bearing Survey No. 505 admeasuring 67077 Sq. mtrs. and another property bearing Survey No. 521 admeasuring 9915 Sq. mtrs. total 76,992 Sq. mtrs. situated at Taluka Khambhat, District Anand. The aforesaid property came to be purchased by the petitioner as per Registered Sale Deed dated 25. 02. 2004 executed by the Official Liquidator, Gujarat on behalf of the Ram Prakash Spinning Mills Ltd. Khambhat (hereinafter referred to as Company in Liquidation) and the said sale deed was executed in pursuance of the confirmation of the sale by this Court (Coram: A. R. Dave, J.) as per order dated 14. 02. 2003 in O. L. Report No. 12 of 2003 in Company Petition No. 328 of 1997 read with order dated 06. 09. 2003 of this Court (Coram: C. K. Buch, J.) in Company Application No. 413 of 2003 in Company Petition No. 328 of 1997. There is no dispute on the aforesaid aspects and also on execution of the sale deed in favour of the petitioner against the consideration of Rs. 97,02,750/ -. There is also no dispute on the point that the aforesaid sale deed is registered with the Sub Registrar and the property in question is received by the petitioner pursuant to the sale deed.
( 3 ) IT appears that based on the Registered Sale Deed, Entry No. 10453 dated 10. 04. 2004 came to be mutated in the revenue record by the Deputy Mamlatdar. However, upon the verification of the record, it was found by the Deputy Mamlatdar that the names of all the partners were mentioned and in the record, there is also encumbrance of Gujarat Electricity Board, Sales Tax Officer, Khambhat Municipality and Mamlatdar, Khambhat and, therefore, the entry was cancelled. It appears that the petitioner carried the matter before the Deputy Collector by preferring the appeal and the Deputy Collector as per the order dated 11. 08. 2004, dismissed the appeal by confirming the order of the Deputy Mamlatdar for cancelling the Entry No. 10453. It is under these circumstances, the petitioner Market Committee has approached to this Court by preferring the present petition.
( 4 ) I have heard Mr. B. S. Patel, learned Counsel appearing for the petitioner, Mr. Siraj Gori, learned A. G. P. appearing for the State, Official Liquidator, Mr. A. D. Oza, learned Counsel appearing for the respondent No. 6 and Ms. Jhaveri for Mr. S. K. Jhaveri, learned Counsel appearing for the respondent No. 7.
( 5 ) AS per the provisions of Bombay Land Revenue Code more particularly Section 13c of the Code, when any right in any land is acquired, the acquisition of right is to be reported to village accountant but as per the proviso of Section 135c, there is no obligation to report if the rights are acquired by virtue of the registered document. Therefore, it appears that when the rights are acquired by virtue of the registered document, the legislature has exempted such person to report regarding the acquisition of the right and because as per the scheme of the Code read with the Rules, the intimation is being received by the Village Accountant and based on the same, entry for acquisition of the right as per registered sale deed is required to be mutated as per Section 135c of the Code. After the acquisition of rights, if the objections are received, the procedure as per Section 135d is required to be followed which in the case was followed but the entry is cancelled. The Deputy Collector has also confirmed the said order.
( 6 ) AS per the decision of this Court in case of Zaver Savji Patel (through power of attorney holder) Ashok Zaver Patel v. Kanchanben Nathubhai Patel reported in 2005 (3) GLH 657, the entry based on the registered sale deed, in normal circumstances, is required to be reflected in the revenue record. It appears that in the present case, the lower authorities have cancel
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