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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. KOGJE, J.
Roshanben Hajibhai Deraiya W/o. Ganibhai Sorathiya - Petitioner
Versus
State of Gujarat - Respondent
R/Special Civil Application No. 10065 of 2020
Decided On : 09-07-2021
Constitution of India, 1950 – Article 226 – Registration Act, 1908 – Section 49 – Gujarat Land Revenue Code – Section 135D – Learned Assistant Government pleader waives service of rule on behalf of respondent No.-1-State. Learned advocate waives service of rule on behalf of respondent Nos.5 to 8 – Held, Even after death of father, right of petitioner on account of succession for her share in father’s share of land in question was required to be examined – Document consent/affidavit could not be treated to have extinguished right of petitioner in share of father after his death – Order of Deputy Collector is therefore faulted on ground of not considering relevant material – Authorities specifically also have not taken into consideration this aspect – Respondent authorities have also committed an error simply by rejecting application on ground of delay – Error committed is that authorities have construed delay in challenging entry from year 2010 i.e. day on executing of consent/affidavit. As a matter of fact, challenge by petitioner is not to any mutation entry but to mutation entry which was on basis of an application made by respondent Nos.5 to 7 appears and certified – To challenge this, petitioner has filed an application before Deputy Collector – In that view of matter, it cannot be said that challenge by petitioner was after inordinate delay – Petition allowed.
JUDGMENT :
1. Rule. Learned Assistant Government pleader waives service of rule on behalf of respondent No.-1-State. Learned advocate Mr. Mohsinkhan Koreja waives service of rule on behalf of respondent Nos.5 to 8. This petition under Article 226 of the Constitution of India is filed by the petitioner with the following prayers:-
(b) issue appropriate Writ, direction or order pending admission and hearing of this petition to stay the mutation entry no.6364 dated 30/08/2016 certified on 19/10/2016 by the Mamlatdar, Shihor, District Bhavnagar.
(c) pass ad-interim or interim order ex-parte in terms of paragraph (b) above.”
2. It is the case of the petitioner that the petitioner and respondent Nos. 5 to 8 are brothers and sisters and their father namely Hajibhai Sulemanbhai Deraiya was owner of agricultural land of village Shihor. That during the lifetime of the father Hajibhai Sulemanbhai, names of three brothers i.e. respondent Nos. 5, 6 and 7 were entered on 05.08.2010 and certified on 01.11.2010. While making this mutation entry, affidavits of the sisters i.e. the petitioner and respondent No.8 were relied upon and the affidavits were to the effect of relinquishing their rights into the father's property. It is submitted that based on such affidavit, right of the petitioner was extinguished. Learned advocate for the petitioner draws attention of this Court to the purported affidavit which relinquishes the right and submits that the document in the form of consent/affidavit cannot be treated as a relinquishment deed and could not have been acted upon by the authorities. The petitioner has now disputed the said relinquishment deed and therefore, the petitioner has right to adjudicate the same before the authorities, but the authorities have erroneously rejected the application merely on the ground of delay and accepted such relinquishment deed despite the petitioner has objected to the same.
3. It appears that the father Hajibhai Sulemanbhai Deraiya expired on 14.10.2010 and upon presenting the death certificate by respondent Nos. 5 to 7 before the Mamltadar, Shihor alongwith an application, the land belonging to the father of the petitioner was distributed amongst respondent Nos.5, 6 and 7 however, no consent or approval was obtained from the petitioner. The entry was made vide mutation entry No.6364 without following any procedure including issuing of notice under Section 135D of the Gujarat Land Revenue Code (for short “the Code”) and the entry was confirmed on 19.10.2016.
4. Learned advocate for the petitioner submits that the mutation entry No.6364 confirmed on 19.10.2016 was without following process of law and relying upon the affidavit dated 02.08.2010 purportedly relinquishing the right of the petitioner from the property of the father. It is submitted that even the affidavit dated 02.08.2010 is to be considered relinquishment deed, it was at the time when father was alive and in his presence, four names that is to say father and three brothers were entered into revenue record, but upon the death of the father, suddenly without change and at least in so far as the share of the father in the agricultural land, the right of the petitioner would survive unless extinguished by following due process of law. Learned advocate has relied upon the decision in the case of Sita Ram Bhama v/s. Ramvatar Bhama, reported in 2018 (15) SCC 130 and in the case of Yellapu Uma Maheshwari v/s. Buddha Jagadheeswararao, reported in 2015 (16) SCC 787 to submit that no right, title or interest of the petitioner would travel to the brothers on the basis of do
The exercise of discretion by revenue authorities must be in line with statutory provisions, and revenue entries are subject to the outcome of civil proceedings.
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