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2020 Supreme(Guj) 439
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
Mavjibhai Shamjibhai Patel – Petitioner
Versus
State of Gujarat – Respondent
R/Special Civil Application No. 21946 of 2019
Decided On : 28-02-2020
Advocate Appeared:
For the Petitioner: Mr Mihir Thakore, Senior Counsel With Mr Satyam Y Chhaya
For the Respondent: Ms Aishvarya Gupta, AGP, Hemali D Soni, Mr. V C Vaghela
Point of Law:
Judgment and order passed by the revisional authority, i.e. Secretary (Appeals) is in consonance with the provisions of Section 135 of the Bombay Land Revenue Code and 108 of the Bombay Land Revenue Rules and the view taken by the Hon'ble Supreme Court as well as this Court with regard to the powers of revenue authorities while dealing with the question of mutation entries. The revenue authorities are not required to consider with regard to the genuineness of the sale deed, the powers and authority of the power of attorney holder under the power of attorney and the question with regard to the title.
Headnote:
Bombay Land Revenue Code and 108 - Section 135 - Petitioner has prayed to quash and set aside impugned order mutated in favor of petitioner pursuant to registered sale deed executed in favor of petitioner by respondents with respect to land in question - Legal heirs of original owner challenged revenue entry no which was entered in favor of respondent before Deputy Collector and appeal being allowed entry was cancelled - Respondent preferred a revision before Collector and thereby entry was restored in favor of respondent order was confirmed by this Court in Special Civil Application - In interregnum heirs of original owner filed suit being Civil Suit against heirs challenging original sale in favor of respondents which was settled between them - As a result of which sale in favor of respondent stood confirmed as original first sale of favor of first seller Grover was confirmed in settlement was mutated - Held, challenge in Special Civil Application is common and all parties present petitioner and respondents have a common interest and therefore a revenue entry mutated in favor of present petitioner cannot be reversed on ground of a status quo order special Civil Application - Even otherwise order of reads that revenue authority shall not alter revenue entry which exists today - Petitioner which could not be cancelled on objection of respondent petitioner of Special Civil Application - Court in a recent judgment in case has considered the scope of revenue authorities while deciding the question with regard to mutation entry and powers has held that revenue authorities are not to decide question about entries on basis of decision of Civil Court - It is further held in said judgment that revenue authorities are invested with limited powers they cannot assume to themselves certain powers conferred on them by law and they cannot assume jurisdiction of Civil Court - revenue authorities cannot decide validity of transaction on touchstone of statutory provision occurring in some enactment and that they cannot decide disputed question of title - In fact this Court has gone to extent that when a dispute as to title arises parties have to go to competent Civil Court - In present case in Civil Suit is pending between parties and Civil Court is to decide all these questions which are raised by petitioner in present Special Civil Application with regard to validity of power of attorney genuineness of sale deed and authority of power of attorney holder on basis of power of attorney - Petition dismissed (Para 10)
Facts of the Case:
Legal heirs of original owner Jayantibhai Balubhai challenged the revenue entry no. 3184 which was entered in favour of respondent no. 8 before the Deputy Collector and the appeal being allowed, entry no. 3184 was cancelled. Respondent no. 8 preferred a revision before the Collector and thereby entry no. 3184 was restored in favour of respondent no. 8. The order was confirmed by this Court in Special Civil Application No. 23458 of 2007 and entry no. 3611 was mutated on 25.12.2011.
Finding of the Court:
Challenge in Special Civil Application is common and all parties present petitioner and respondents have a common interest and therefore a revenue entry mutated in favor of present petitioner cannot be reversed on ground of a status quo order special Civil Application - Even otherwise order of reads that revenue authority shall not alter revenue entry which exists today - Petitioner which could not be cancelled on objection of respondent petitioner of Special Civil Application - Court in a recent judgment in case has considered the scope of revenue authorities while deciding the question with regard to mutation entry and powers has held that revenue authorities are not to decide question about entries on basis of decision of Civil Court - It is further held in said judgment that revenue authorities are invested with limited powers they cannot assume to themselves certain powers conferred on them by law and they cannot assume jurisdiction of Civil Court - revenue authorities cannot decide validity of transaction on touchstone of statutory provision occurring in some enactment and that they cannot decide disputed question of title - In fact this Court has gone to extent that when a dispute as to title arises parties have to go to competent Civil Court - In present case in Civil Suit is pending between parties and Civil Court is to decide all these questions which are raised by petitioner in present Special Civil Application with regard to validity of power of attorney genuineness of sale deed and authority of power of attorney holder on basis of power of attorney.
Result: Petition dismissed
JUDGMENT :
1. Rule returnable forthwith. Ms. Aishvarya Gupta, learned Assistant Government Pleader appearing for the State and Mr. V.C. Vaghela, learned advocate for the respondent no. 8 waive service of notice of rule. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing today.
2. By way of the present petition, the petitioner has prayed to quash and set aside the impugned order dated 30.09.2019 passed by respondent no. 5 – Mamlatdar in RTS Dispute Case No. 34 of 2019 and to direct the respondent no. 5 – Mamlatdar to certify entry no. 4712 mutated in favour of the petitioner pursuant to the registered sale deed dated 11.07.2018 executed in favour of the petitioner by respondents no. 9 & 10 with respect to the land in question.
3. The land in question is land bearing Survey No. 419 admeasuring 13,959 sq. mtrs of village Abhava, Taluka – Majura, District – Surat. One Jayantibhai Balubhai was the original owner of the land. On 17.08.1987 the said land was purchased by deceased Hanskamal Atmaprakash Grover. Pursuant to such a sale, by a registered sale deed, entry no. 959 was mutated in favour of Hanskamal Grover on 20.08.1987. Later the names of Hanskamal Grover’s father and sister Sudhaben Gandhi were entered vide mutation entry no. 982 which was certified on 22.12.1988. The family members, Sudhaben and widow, on Hanskamal Grover’s death sold the lands on 24.05.2007/12.06.2007 in favour of respondent no. 8 Kantilal Nagjibhai (petitioner of Special Civil Application No. 13977 of 2019). Accordingly, on 21.09.2007, entry no. 3184 was mutated in the favour of respondent no. 8 as a result of a registered sale deed and the same was certified on 09.07.2008.
3.1 Legal heirs of original owner Jayantibhai Balubhai challenged the revenue entry no. 3184 which was entered in favour of respondent no. 8 before the Deputy Collector and the appeal being allowed, entry no. 3184 was cancelled. Respondent no. 8 preferred a revision before the Collector and thereby entry no. 3184 was restored in favour of respondent no. 8. The order was confirmed by this Court in Special Civil Application No. 23458 of 2007 and entry no. 3611 was mutated on 25.12.2011.
3.2 In the interregnum, the heirs of Jayantibhai – original owner filed suit being Civil Suit No. 183 of 2007 against the heirs challenging the original sale of 2007 in favour of respondents which was settled between them. As a result of which the sale in favour of Kantibhai Nagjibhai – respondent no. 8 stood confirmed as the original first sale of 1987 in favour of the first seller Hanskamal Grover was confirmed in such settlement. Entry no. 3612 was therefore mutated on 25.12.2011.
3.3 The respondent no. 8 then sold the land to the respondents no. 9 and 10 by a registered sale deed on 27.06.2012. Pursuant to such a sale deed, entry no. 3700 was mutated in favour of respondents no. 9 and 10 on 13.09.2012. This entry was not challenged by respondent no. 8. Between the period when the respondent no. 8 sold the land to respondents no. 9 and 10, the Circle Officer vide his order dated 22.05.2012 cancelled the mutation entry in the name of respondent no. 8 on the ground that the land was mortgaged to the Rander Peoples’ Cooperative Bank Limited – respondent no. 7 by Hanskamal Grover, the first purchaser and therefore a charge was to be recorded.
3.4 After a round of remand, the Collector on a revision filed by respondents no. 8, 9 and 10, by order dated 23.01.2017 allowed the same. On 07.11.2017, the land was converted into N.A and entry no. 4487 was mutated and accordingly certified. On 11.07.2018, the petitioner Mavjibhai Shamjibhai Patel purchased the land from respondents no. 9 & 10 whose names continued in the revenue record. A consideration of Rs.7 crores and forty lacs was paid to respondents no. 9 and 10 by the petitioner for the sale of land. The respondent no. 7 – bank challenged the order of the Collector dated 23.01.2017 before the Speci
