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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. THAKER, J.
Dhanvantiben Subhashbhai Jethva - Appellant
Versus
State of Gujarat - Respondent
R/Special Civil Application No. 2490 of 2019
Decided On : 23-11-2021
Constitution of India, 1950 - Article 226 and 227 - Fragmentation Act, 1947 - Bombay Tenancy and Agricultural Lands Act, 1948 – Section 63 - Land - Transfer Of Land - Registered Sale Deed - Whether breach of other enactment is committed or not - Whether breach of other enactment by impugned transfer or registered sale deed is made or not - Whether there is any breach of provisions of Prevention of Fragmentation Act or provisions of Tenancy Act.
Finding of the Court:
It clearly transpires that where transfer of land is made by registered sale deed and prima facie, revenue authority is of view that such transfer is either barred under other enactment or is resulting in a breach of other enactment or is to result into adversely affecting rights under other enactment, and consequently sale is prohibited, then in that case, appropriate course for revenue authority would be to record entry for registered sale deed that provisions of registered sale deed is prima facie in breach of enactment and simultaneously, refer matter to competent authority under other concerned enactment of which breach is committed and entry should be made subject to final decision which may be taken by competent authority under concerned enactment - If entry, on basis of sale deed is not at all effected, with aforesaid qualification or without aforesaid qualification, it may also conversely mislead public at large and also to those persons who act upon revenue record because there will be no recording of such transactions of registered sale deed which has effect of conferring right on property unless it is prohibited by relevant statute under other enactment or unless such sale deed is declared as null and void by competent authority or through process known to law - Revenue authority is directed to enter name of petitioner as owner of agricultural land in question in all relevant revenue records.
Result: Petition allowed
ORDER :
1. At the joint request of both the sides, the matter was heard finally at admission stage. Heard learned advocate Mr. R.N. Jadhav for the petitioner and learned AGP Mr. Nikunj Kanara for the respondent-State.
2. By way of filing this petition under Article 226 and 227 of the Constitution of India the petitioner has prayed for the following reliefs.
(B) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order passed by the Deputy Collector Bhavnagar in Rev/ Appeal Case No. 167 of 2013-2014 vide order dated 22.04.2015,(2) impugned order passed by the Collector-Bhavnagar in Revision bearing No. R.O./Revision Case No.49 of 2015-16, dated 09.12.2015 and (3) impugned order passed by the Additional Secretary (Appeals) in Revision Application NO. MVV/HKP/BVN/No. 62 of 2016 dated 24.08.2018 and further be pleased to direct the appropriate authority to enter the name of the petitioner as owner of the agricultural land bearing Revenue Survey No. 201 Paiki 1m admeasureing Hector 00-76-89 along with Pot Kharaba land Hector 00-01-01, aggregately hector 00-77-90 out of which land admeasuring hector 00-38-95 of village Koliyak, Taluka Bhavnagar, District- Bhavnagar in all the relevant revenue records.
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay execution, operation and implementation of the (1) impugned order passed by the Deputy Collector, Bhavnagar in Rev/ Appeal Case No. 167 of 2013-2014 vide order dated 22.04.2015,(2) impugned order passed by the Collector-Bhavnagar in Revision bearing No. R.O./Revision Case No.49 of 2015-16, dated 09.12.2015 and (3) impugned order passed by the Additional Secretary (Appeals) in Revision Application NO. MVV/HKP/BVN/No. 62 of 2016 dated 24.08.2018 and further be pleased to direct the appropriate authority to enter the name of the petitioner as owner of the agricultural land bearing Revneue Survey No. 201 Paiki 1m admeasureing Hector 00-76-89 along with Pot Kharaba land Hector 00-01-01, aggregately hector 00-77-90 out of which land admeasuring hector 00-38-95 of village Koliyak, Taluka Bhavnagar, District- Bhavnagar in all the relevant revenue records.
(D) Such other and further relief/s as may be deem just and proper in the facts and circumstances of the case may please be granted in favour of the petitioner in the interest of justice.”
3. The present petitioner has challenged the order passed by the revenue authority for rejecting the mutation of the entry number on the basis of the registered sale deed of the suit land in question. It is the say of the petitioner that the petitioner has purchased the land bearing revenue survey no. 201 Paiki 1, admeasuring Hector 00-76-89 along with Pot Kharaba land Hector 00-01-01, aggregately hector 00-38-98 of village Koliyak, Taluka Bhavanagar, District: Bhavnagar by way of registered sale deed No. 80 dated 10.01.2011, from the owners of the land namely (1) Ravjibhai Kanjibhai,(2) Divaliben Kanjibhai, (3) Amrutaben Kanjibhai, (4) Laxmiben Kanjibhai, (5) Bhavnaben Kanjibhai, (6) Khodabhai Kanjibhai. It is further contended that the Laxmiben Bachubhai has executed the registered sale deed no. 1558 in favour of Savjibhai Jadavbhai Dabhi on 15.05.1987, in respect of survey no. 195, wherein it was stated that by way of amicable settlement between the heirs, pursuant to that survey no. 195 was given as part of share of the properties in favour of Laxmiben Bachubhai and pursuant to that revenue entry no. 810 was mutated in the revenue record on 13.01.1988.
3.1 It is further the case of the petitioner that thereafter the another sale deed no. 3951 was executed by Baluben widow of deceased Jeevabhai and 11 others with respect to survey no. 201 admeasuring land acre 1:00 Gunthas in favour of Ravjibhai Bhayabhai and Khatabhai Jadavbhai and pursuant
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