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citation codes
Case Number
Disposition

allowed

Attorney(S)
  • Viral K Shah(5210) No. 1
  • Ms. Dhwani Tripathi, Agp No. 1
  • Mr. Jayesh M Patel(617) No. 5, 6
  • Notice Served by Ds No. 2, 3, 4
Judges
  • Hon'ble Dr. Justice A. P. Thaker
Acts
  • provisions of Bombay Land Revenue Code, 1879 and Rules.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Disposition

allowed

Attorney(S)
  • Viral K Shah(5210) No. 1
  • Ms. Dhwani Tripathi, Agp No. 1
  • Mr. Jayesh M Patel(617) No. 5, 6
  • Notice Served by Ds No. 2, 3, 4
Judges
  • Hon'ble Dr. Justice A. P. Thaker
Acts
  • provisions of Bombay Land Revenue Code, 1879 and Rules.
See more information ...
Smart Summary

Judgment Summary — A.P. Thaker, J.

Factual and Procedural Background

The petitioner challenged a series of revenue authority orders by filing the present petition seeking to quash and set aside:

  • Order dated 25.04.2019 passed by respondent no. 1 in Revision Application No. MVV/HKP/SAT/233/2018;
  • Order dated 23.10.2018 passed by respondent no. 2 in RTS/Revision Application No. 43/2017; and
  • Order dated 15.05.2017 passed by respondent no. 3 in RTS/Appeal No. 329/2016.

Relevant facts as recorded in the opinion:

  • Original owners Kiritbhai Chambaklal Vairagivala & others owned consolidated land; the petitioner purchased what is described as "Sub Plot No. 2" (3087.80 sq. m) by a sale deed dated 28.11.2003.
  • Sheetal Manufacturing Company (respondent no. 5) purchased other sub-plots (Sub Plot Nos. 1 & 3) by sale deeds of the same date; mutation Entry No. 26 (dated 13.09.2004) was made in the revenue records, but the petitioner alleges an error resulted in respondent no. 5's name being shown in respect of land the respondent did not purchase.
  • The petitioner's sale deed remained unregistered initially due to a stamp duty issue and was later registered as document no. 4306 dated 03.03.2011 (the petitioner contends registration-related delay and related unavailability of documents extended to 2014 in some accounts).
  • The petitioner filed RTS/Appeal No. 329/16 challenging Mutation Entry No. 26; respondent no. 3 rejected the appeal on 15.05.2017 on the ground of delay, observing that a civil suit was pending since 2010 and therefore the petitioner must have known of the entry.
  • The petitioner pursued revision remedies before respondent no. 2 (RTS/Revision Application No. 43/17) and respondent no. 1 (Revision Application No. MVV/HKP/SAT/233/2018); both authorities rejected the revision on the ground of delay and confirmed earlier orders. Aggrieved, the petitioner filed the present petition in this Court.

Legal Issues Presented

  1. Whether the revenue authorities were correct to reject the petitioner's challenge to Mutation Entry No. 26 and subsequent entries solely on the ground of delay (i.e., whether condonation of delay ought to have been granted and the matter decided on merits).
  2. Whether the mutation entries in the revenue record (particularly Mutation Entry No. 26 and subsequent entries in favour of the private respondents) ought to be modified or cancelled in view of the registered sale deed in favour of the petitioner and the allegation of error/fraud in mutation.
  3. Whether allegations of fraud, mistake, or the particular procedural history (including registration delay of the petitioner's sale deed) could or should have led the authorities to exercise their revisional/inherent powers despite the delay.

Arguments of the Parties

Petitioner's Arguments (Mr. Viral Shah)

  • The authorities erred in rejecting the petitioner's appeals and revisions solely on the ground of delay; the delay should have been condoned and the matters decided on merits.
  • Mere lapse of time should not validate an otherwise illegal or void action; an order or entry which is void ab initio does not create rights and can be questioned at any stage.
  • Mutation Entry No. 26 (13.09.2004) and subsequent entries are required to be modified/canceled because the petitioner had a registered sale deed in his favour (sale deed dated 28.11.2003), albeit registration was delayed due to a stamp duty issue and was ultimately registered on 03.03.2011.
  • Private respondents committed fraud by getting their names mutated in records for land the petitioner asserts they did not purchase; persons committing fraud should not be allowed to benefit from their own wrongs and the revisional power should be exercised despite delay.
  • Where fraud or a mistake prejudices a party, the authority has inherent power to set aside or recall orders obtained by fraud; the respondent no. 3 wrongly rejected the appeal on the sole basis of delay and a pending civil suit (which concerned FSI and construction, not mutation entries).

Respondent Nos. 5 and 6's Arguments (Mr. Jayesh Patel)

  • The sale in favour of Sheetal Manufacturing Company (respondent no. 5) took place and the petitioner was a confirming party to that transaction; Mutation Entry No. 26 dated 13.09.2004 was correctly made and the petitioner had knowledge of it.
  • The land in question was non-agricultural/residential and prior construction dated to 1912; Tenancy Act inapplicability was argued.
  • The petitioner challenged mutation after a long delay (12 years) and lower civil court had rejected the petitioner's suit (Regular Civil Suit No. 264 of 2010).
  • No error was committed by revenue authorities; mutation entries No. 26 and 231 are rightly recorded and conform to the Bombay Land Revenue Code, 1879 and Rules.

State's Arguments (Ms. Dhwani Tripathi, AGP)

  • The impugned orders were proper because there was a clear delay (about 12 years) in moving authorities for mutation based on the petitioner's registered sale deed.
  • The petitioner had knowledge that no entry had been made in respect of his registered sale deed, having earlier filed civil and revenue proceedings; the petition lacked merit and should be dismissed.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court summarized the factual matrix and evaluated the material placed on record and the submissions of both sides. Key elements of the Court's reasoning are:

  1. Examination of sale deeds and record material: The Court observed that the sale deeds and their descriptions showed the parties had separate transactions concerning different pieces of land. The petitioner in some transactions appears as a confirming party to the sale in favour of respondent no. 5.
  2. Distinction between the civil suit and mutation proceedings: The Court noted the civil suit between the petitioner and respondent no. 5 pertained to use of FSI (floor space index) by the private respondent and that the civil court dismissed that suit. That civil proceeding related to construction/FSI issues and was not directly a proceeding to set aside a sale deed or mutation entry.
  3. Petitioner's registration delay and asserted lack of access to deed: The petitioner stated his sale deed remained impounded due to stamp duty issues until 2011 (with some reference to 2014 for obtaining documents from City Survey); this fact was not denied by the respondents or the Government.
  4. Authorities' treatment of the matter: The Court found that the revenue authorities had rejected the petitioner's applications/revisions primarily on the ground of delay without apparently taking into account the distinctions in documents, the petitioner's claim about registration delay, and other aspects of the factual matrix.
  5. Resulting inference and direction: Given that the authorities did not consider all relevant aspects before rejecting the applications on delay alone, the Court concluded that the matter required reconsideration on merits after affording parties a hearing.

Holding and Implications

Holding:

The petition is partly allowed. The Court quashed and set aside:

  • Order dated 25.04.2019 passed by respondent no. 1 in Revision Application No. MVV/HKP/SAT/233/2018;
  • Order dated 23.10.2018 passed by respondent no. 2 in RTS/Revision Application No. 43/2017; and
  • Order dated 15.05.2017 passed by respondent no. 3 in RTS/Appeal No. 329/2016.

Direct consequences and directions:

  • The matter is remanded to the concerned revenue authority for fresh decision in accordance with law after affording both sides an opportunity to be heard.
  • The remand and fresh decision are to be completed within a period of three months from the date of receipt of the Court's order.
  • No order as to costs was made by the Court.
  • Direct service of the order is permitted.

Implications regarding precedent: The opinion does not purport to lay down a new general legal principle beyond the direction to decide the matter afresh after considering the factual and procedural nuances. No broader precedent was declared in the opinion; the ruling effects the parties by quashing the impugned orders and remanding the case for reconsideration.

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    Rameshbhai Laxmanbhai Sakariya v. State Of Gujarat

    A.P. Thaker, J.:— By filing this petition, the petitioner has prayed to quash and set aside order dated 25.4.2019 passed by respondent no. 1 in Revision Application No. MVV/HKP/SAT/233/2018 and order dated 23.10.2018 passed by respondent no. 2 in RTS/Revision Application No. 43/2017 as well as order dated 15.5.2017 passed by respondent no. 3 in RTS/Appeal No. 329/2016.

    2. Brief facts leading to filing of this petition is as under:—

    3. That Kiritbhai Chambaklal Vairagivala and others were the original owners of the land admeasuring 3368 sq. mtrs. Said land comprises of Sub Plot No. 1 - 1815.90 sq. mtrs., Sub Plot No. 3 - 280.20 sq. mtrs. & Sub Plot No. 2-3087.80 sq. mtrs. Present petitioner is concerned with Sub Plot No. 2-3087.80 sq. mtrs. only.

    4. Petitioner had purchased Sub Plot No. 2-3087.80 sq.mtrs., vide registered Sale Deed on 28.11.2003. Said Sale Deed was executed by Kiritbhal Chambaklal Vairagivala. Sheetal Manufacturing Company, a partnership firm through its partner Vallabhbhai Laljibhai Kakadiya-respondent no. 5 herein had purchased 2 properties from Kiritbhai Chambaklal Vairagivala, (i) Sub Plot No. 1 - 1815.90 sq. mtrs on 28.11.2003 and (ii) Sub Plot No. 3 - 280.20 sq. mtrs. Pursuant to the aforesaid Sale Deeds, mutation Entry No. 26 was mutated on 13.09.2004. At that relevant point of time i.e. mutating the entry error was committed. The property with which respondent no. 5 was not concerned still his name was mutated. In other words, name of respondent no. 5 was mutated in the land which the said respondent has never purchased. To put it differently, in the revenue record against the land of the petitioner the name of respondent no. 5 was reflected. The Mutation Entry No. 26 was certified on 18.10.2004.

    5. Another sale transaction took place in respect of Sub plot 1 and 3. Pursuant to it also entry came to be mutated. Said mutation entry No. 211 was also certified. Respondent no. 2 thereafter vide order dated 30.03.2008 granted revised NA permission for the purpose of commercial use with respect to 1761/1 paiki, 1761/2, 1762, 1763, 1764 admeasuring 2096.10 sq. mtrs. In the revenue record order of revised NA came to be posted vide Mutation Entry no. 758.

    6. Since the document with respect to registered Sale Deed no. 6885 dated 28.11.2003 executed by Kiritbhai Chambaklal Vairagivala and others in favour of the petitioner with respect to City Survey No. 1762, 1763, 1764 and 1765 of Plot No. 3 paiki admeasuring 3087.80 sq.mtrs was pending before the Sub-Registrar Office with respect to stamp duty issue, it was later on registered vide no. 4306 dated 03.03.2011. The petitioner was under the impression that the concerned authority must have made entry with respect to the registered sale deed no. 6866 dated 28.11.2003 as per the report of the Sub-Registrar. In the year 2016, the petitioner came to know that a mistake that has crept in while mutating Mutation Entry No. 26. Thus, the petitioner preferred RTS/Appeal No. 320/16 before the Deputy Collector, City Prant respondent no. 3 herein challenging the Mutation Entry No. 26 dated 13.09.2004. In the appeal, it was clearly explained the reasons for delay in filing the appeal. However, the respondent no. 3 vide order dated 15.05.2017 passed in RTS/Appeal No. 329/16 rejected the appeal filed by the petitioner on the ground of delay. It is observed that the Civil Suit was pending since 2010 and therefore it is not believable that the petitioner was not having the knowledge about Entry No. 26 dated 13.09.2004. It is pertinent to note that the Regular Civil Suit No. 264 of 2010 filed by the petitioner before the Court of 9 Additional Senior Civil Judge, Surat against the Sheetal Manufacturing Company, partnership firm of the respondent no. 5, Surat Municipal Corporation, respondent no. 5 and 6 that the private respondents have utilized FSI of the petitioner for the construction of his property. Thus easement rights of the petitioner are affected and therefore sought a declaration that the private respondents do not have any right for any illegal construction on the FSI of the petitioner. It was further prayed to restrain the private respondents from making illegal construction on the FSI of the petitioner and sought direction against the Surat Municipal Corporation to remove the illegal construction made by the private respondents. However, the learned Civil Judge vide order dated 11.12.2015 rejected the suit filed by the petitioner.

    7. Being aggrieved and dissatisfied by the order dated 15.05.2017 passed by respondent no. 3 in RTS/Appeal No. 329/16, the petitioner preferred Revision Application before respondent no. 2 being RTS/Revision Application No. 43/17. However, the respondent no. 2 also vide order dated 23.10.2018 rejected the RTS/Revision Application No. 43/17 filed by the petitioner and confirmed order dated 15.05.2017 passed by the respondent no. 3 in RTS/Appeal No. 329/16. The respondent no. 2 rejected the revision application on the ground of delay and it was observed that the petitioner was aware about the Mutation Entry No. 26 dated 13.09.2004 from the beginning as the Mamlatdar & ALT initiated proceeding against respondent no. 5 with respect to the registered Sale Deed executed in favour of respondent no. 5 being Tenancy Case No. 17/2004, however, said proceeding was dropped by the Mamlatdar and ALT vide order dated 31.08.2004. Against the said order petitioner preferred Tenancy Appeal No. 4/2004 and the said appeal was rejected by the Deputy Collector vide order dated 18.02.2009. Against said order dated 18.02.2009 the petitioner preferred revision application before the Gujarat Land Revenue Tribunal being Revision Application No. TEN/BAS/38/09(3). The Gujarat Land Revenue Tribunal rejected said Revision Application No. TEN/BAS/38/09(3) vide order dated 06.04.2016. Against order dated 06.04.2016 petitioner preferred Special Civil Application No. 13476/2016 before this Hon'ble Court and this Hon'ble Court also vide order dated 06.07.2017 rejected Special Civil Application No. 13476/2016.

    8. Being aggrieved and dissatisfied by the order dated 23.10.2018 passed by respondent no. 2 in RTS/Revision Application No. 43/17, the petitioner preferred Revision Application before respondent no. 1 being Revision Application No. MVV/HKP/SAT/233/2018. The petitioner also produced all the relevant documents before all the respondent authorities. However, respondent no. 1 also vide order dated 25.04.2019 rejected the Revision Application No. MVV/HKP/SAT/233/2018 filed by the petitioner on the ground of delay and confirmed the order dated 23.10.2018 passed by the respondent no. 2 in RTS/Revision Application No. 43/17 and observed that the petitioner is required to make correction in the registered Sale Deed. Thus, being aggrieved and dissatisfied by the order dated 25.04.2019 passed by respondent no. 1 in Revision Application No. MVV/HKP/SAT/233/2018, the order dated 23.10.2018 passed by the respondent no. 2 in RTS/Revision Application No. 43/17 and the order dated 15.05.2017 passed by the respondent no. 3 in RTS/Appeal No. 329/16, petitioner has filed present petition.

    9. Heard learned advocate Mr. Viral Shah for the petitioner, learned AGP Ms. Dhwani Tripathi for respondent no. 1-State and learned advocate Mr. Jayesh Patel for respondent nos. 5 and 6.

    10. Learned advocate Mr. Shah for the petitioner has submitted that the respondent authorities have erred in rejecting the case of the petitioner on the ground of delay. He submitted that the respondent authorities ought to have condoned the delay in filing the appeal by the petitioner and should have decided the matter on merits. He submitted that the respondent authorities ought to have appreciated the settled law that mere lapse of time would not make the action of authorities invalid. He submitted that any action, transaction, decision or order which is illegal and void ab initio to be treated as non est, validity of such an illegal non est order could be questioned in any proceedings at any stage by anybody, and non est order does not create any right, title or interest. It confers neither any status nor any right. Such non est or illegal order, decision, transaction or action would be for all purpose ineffective and of no consequence in the eye of law. He submitted that the entries made in the revenue record which is void ab initio cannot be legalized simply because delayed action was taken.

    11. Mr. Shah further submitted that the respondent authorities ought to have appreciated that there is no dispute with respect to the fact there is a registered Sale Deed no. 6885 dated 28.11.2003 executed by Kiritbhai Chambaklal Vairagivala and others in favour of the petitioner with respect to City Survey No. 1762, 1763, 1764 and 1765 of Plot No. 3 paiki admeasuring 3087.80 sq.mtrs. However, the said document was pending before the Sub-Registrar Office with respect to stamp duty issue and therefore it was later on registered vide no. 4306 dated 03.03.2011. This fact is also admitted by the respondent no. 5 before the Civil Court in the affidavit in lieu of examination in chief. He submitted that the respondent authorities ought to have appreciated that the Mutation Entry No. 26 dated 13.09.2004 and all subsequent entries are required modified/canceled and also required to make entry with respect to the registered Sale Deed executed in favour of the petitioner. He also submitted that the respondent authorities ought to have appreciated that Mutation Entry No. 26 dated 13.09.2004 and all subsequent entries in the revenue record with respect to the land in question in favour of the private respondents are required to be canceled as they were/are aware about the registered sale deed executed in favour of the petitioner. Then also behind the back of the petitioner, the private respondents mutated their names in the revenue record with respect to the land in question and committed fraud. He also submitted that the respondent authorities ought to have appreciated that the persons who have committed fraud cannot claim benefit of their own wrong and contend that the revisional powers is not exercised within reasonable time.

    12. Mr. Shah further submitted that the respondent authorities ought to have appreciated the principle that since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court/Authority and also amounts to an abuse of the process of Court/Authority, the Courts/Authority have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court/Authority. Similarly, where the Court/Authority is misled by a party or the Court/Authority itself commits a mistake which prejudices a party, the Court/Authority has the inherent power to recall its order. He also submitted that the respondent no. 3 has erred in rejecting RTS/Appeal No. 329/16 vide order dated 15.05.2017 filed by the petitioner on the ground of delay and observing that the Civil Suit was pending since 2010 and therefore it is not believable that the petitioner was not having the knowledge about Entry No. 26 dated 13.09.2004. The respondent no. 3 ought to have appreciated that the Regular Civil Suit No. 264 of 2010 filed the petitioner before the Court of 9 Additional Senior Civil Judge, Surat against the Sheetal Manufacturing Company, partnership firm of the respondent no. 5, Surat Municipal Corporation, and respondent no. 5 and 6 that the private respondents have utilized FSI of the petitioner for the construction of his property. Thus, easement rights of the petitioner are affected and therefore sought a declaration that the private respondents do not have any right for any illegal construction on the FSI of the petitioner. It is further prayed to restrain the private respondents from making illegal construction on the FSI of the petitioner and sought direction against the Surat Municipal Corporation to remove the illegal construction made by the private respondents. However, the learned Civil Judge vide order dated 11.12.2015 rejected the suit filed by the petitioner. Thus the said proceeding was with respect to the construction made by the private respondents and not related to any entry proceeding. In view of all these submissions, he has prayed to allow present petition.

    13. Mr. Jayesh Patel, learned advocate for respondent nos. 5 and 6 has submitted that Sale took place in favour of Sheetal Manufacturing Company and the petitioner was confirming party to the said transaction. He also submitted that Mutation Entry No. 26 was made on 13.9.2004 in this regard, therefore, the petitioner had knowledge about it and he has no right to challenge it. He submitted that the land in question was not meant for cultivation and it was meant for residential purpose and tax is also assessed accordingly. He submitted that construction on the suit land was put up in 1912, therefore, Tenancy Act would not be applicable. He submitted that the petitioner has challenged mutation entry after 12 long years. He also submitted that Regular Civil Suit No. 264 of 2010 filed by the petitioner is also rejected by lower Court. He further submitted that no error was committed by the revenue authority in making mutation entry and name of respondent no. 5 is rightly mutated for the land purchased by respondent no. 5. He further submitted that Shital Manufacturing Company has sold out the property in question vide registered Sale Deed No. 2872 dated 11.3.2005 to Shardaben Vallabbhai Kakadia, respondent no. 6 herein, and entry no. 231 was mutated on 4.4.2005. He, therefore, submitted that mutation entry No. 26 and 231 are rightly mutated in the record of rights and they are in accordance with the provisions of Bombay Land Revenue Code, 1879 and Rules. In view of these submissions, he has prayed to reject present petition.

    14. Ms. Tripathi, learned AGP has submitted that the impugned order of the authorities are proper as there was clear delay of 12 years in moving the authority for mutation of entry on the basis of a register Sale Deed in favour of the petitioner. She has submitted that the petitioner had knowledge that no entry has been made in respect of registered Sale Deed as he has earlier filed a suit against private respondent and has also filed revenue proceedings and therefore, this petition is devoid of merits and it may be dismissed.

    15. Having considered the submissions made on behalf of both the sides coupled with the material placed on record, it transpires that the petitioner has purchased the land of revenue Survey No. 47/A paiki of TP Scheme No. 4, Final Plot No. 255 paiki, plot number 3 land admeasuring 3693 square yards of village Navagam, District Surat. It is refected from the registered Sale Deed that defendant No. 5 has purchased the land of same survey number and same final plot number, from the same seller and the document is at page 51 to 71 and the petitioner herein is one of the confirming party. It also reveals from page 72 that for the sale in favour of respondent No. 5 also, the petitioner is a confirming party. The land in question is of TP Scheme No. 4, Final Plot No. 255 paiki, Plot No. 3 paiki, where the small rooms are constructed have been sold. There is no dispute that the suit was filed between the petitioner and respondent no. 5 and that suit came to be dismissed. It reveals from the decision of Civil Court that the suit was pertaining to FSI used by private respondent. From the decision of the Civil Court, it is found that there is a different registered Sale Deed for different land.

    16. Now, the grievance of the petitioner is that though Sale Deed of the land in question was pertaining to the same date i.e. 20 November 2003, the same has not been mutated in the revenue record, which he came to know when he filed for necessary document from City Survey in 2014. According to the petitioner, up to 2011, his document was kept in abeyance for stamp duty violation and it was cleared in 2014. It is also submitted that the entry in respect of document in favour of private respondents has already been recorded but the entry in respect of his document pertaining to particular land has not been mutated in the revenue record. On perusal of the material placed on record, it transpires that the document executed in favour of the petitioner as well as private respondent pertains to different land, as refected from description in the Sale Deed. The said suit is filed by the petitioner against private respondent was regarding use of FSI.

    17. It clearly appears that all the three documents refer to different lands. The version of the plaintiff is that till 2011 his document was impounded and this fact has not been denied. It is not the case of the Government or the private respondent that the Sale Deed in favour of the petitioner has been set aside by the competent Court or by the owner. On perusal of the impugned order of the authorities, it clearly transpires that they have not taken into consideration all these aspects and have rejected the application of the petitioner only on the ground of delay.

    18. Under the circumstances, the matter needs to be remanded back to the concerned authority for deciding it afresh after affording an opportunity of being heard to both the sides. In view of above, the petition is partly allowed. The impugned order dated 25.4.2019 passed by respondent no. 1 in Revision Application No. MVV/HKP/SAT/233/2018, order dated 23.10.2018 passed by respondent no. 2 in RTS/Revision Application No. 43/2017 as well as order dated 15.5.2017 passed by respondent no. 3 in RTS/Appeal No. 329/2016 are quashed and set aside. The matter is remanded back to the concerned authority for deciding it afresh in accordance with law. Such exercise shall be completed within a period of 3 months from the date of receipt of these order. No order as to costs. Direct service is permitted.

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    Comments

    Rameshbhai Laxmanbhai Sakariya v. State Of Gujarat
    (May 6, 2022)