Dhurabhai Mulabhai Vankar vs Manibhai Motibhai Bhoi and Others

M.R. Shah, J.—By way of this petition under Articles 226 and 227 of the Constitution of India the Petitioner has prayed for an appropriate writ, order or direction quashing and setting aside the impugned order dated 29/04/1995 passed by the learned Deputy Secretary (Appeals), Revenue Department, State of Gujarat in Revision Application (SRD) No. 59/1993 by which the learned revisional authority has allowed the Revision Application preferred by the Respondents herein and has quashed and set aside the order passed by the Collector, Panchmahals dated 21/03/1993 in RTS Revision Application No. 46/1992.

The dispute is with respect to the land bearing Survey No. 159 paiki admeasuring 68 Gunthas and 80 Acres situated at village Vadi, Taluka Shera, District Panchmahals. It is the case on behalf of the Petitioner that the Petitioner has purchased the said land by registered sale deed. Necessary mutation entry was made in the revenue record vide mutation entry No. 2965 dated 25/04/1991, which was mutated in the name of the Petitioner on the basis of the registered sale deed. owever, the co-owners objected to certify the entry on the ground that by the said sale there was breach of provisions of Fragmentation Act as all the owners had not signed the sale deed and/or did not execute the sale deed and, therefore, the Mamlatdar directed to cancel mutation entry No. 2965 dated 18/07/1991. Being aggrieved and dissatisfied with the order passed by the Mamlatdar dated 18/07/1991 the Petitioner preferred RTS Appeal No. 5/1992 before the Assistant Collector, Godhra Prant, which came to be dismissed by the Assistant Collector, Godhra Prant vide order dated 05/11/1992. Being aggrieved and dissatisfied with the order passed by the Assistant Collector, Godhra Prant dated 05/11/1992 in RTS Appeal No. 5/1992 the Petitioner preferred RTS Revision Application before the Collector, Panchmahals, being RTS Revision Application No. 46/1992 and the Collector, Panchmahals by order dated 21/03/1993 allowed the said Revision Application by quashing and setting aside the order passed by both the authorities below and held that there is no fragmentation by the said sale. Being aggrieved and dissatisfied with the order passed by the Collector, Panchmahals dated 21/03/1993 in RTS Revision Application No. 46/1992 Respondents preferred Revision Application before the State Government, which came to be decided by the Deputy Secretary (Appeals), Revenue Department, State of Gujarat and the revisional authority vide impugned judgment and order dated 29/04/1995 passed in Revision Application SRD No. 59/1993 allowed the said Revision Application quashing and setting aside the order passed by the Collector, Panchmahals dated 21/03/1993. Being aggrieved and dissatisfied with the impugned judgment and order passed by the revisional authority dated 29/04/1995 in Revision Application SRD No. 59/1993, the Petitioner has preferred the present Special Civil Application under Articles 226 and 227 of the Constitution of India.

Shri Patel, learned advocate appearing on behalf of the Petitioner has vehemently submitted that the revisional authority-State Government has materially erred in quashing and setting aside the order passed by the Collector, Panchmahals by which the Collector has quashed and set aside the order passed by the Mamlatdar and the Assistant Collector with respect to mutation entry No. 2965. It is submitted that as per the settled proposition of law laid down by this Court the revenue authority, while deciding the RTS proceedings, has no jurisdiction to consider the legality and validity of the sale transaction and is not required to consider whether by such sale/transaction there is breach of any other law or not. t is submitted that the aforesaid aspects are required to be considered by the appropriate authority in appropriate proceedings. In respect of the above submissions, he has relied upon the following decisions;

(1) Evergreen Apartment Co-operative Housing Society Ltd. Vs. Special Secretary (Appeals), Revenue Department, Gujarat State,

(2) Gandabhai Dalpatbhai Patel Vs. State of Gujarat,

(3) Jhaverbhai Savjibhai Patel through P.O.A. Holder Vs. Kanchanben Nathubhai Patel,

It is submitted that even otherwise it is rightly observed by the Collector, Panchmahals that by the aforesaid transaction in favour of the Petitioner there was no fragmentation at all. It is further submitted that the impugned judgment and order passed by the revisional authority is required to be quashed and set aside on the ground that the revisional authority has considered that out of four co-owners only two co-owners have executed the sale deed, which could not have been done. It is submitted that while considering the RTS proceedings the revisional authority was not required to consider with respect to the validity of the transaction and whether other two persons could have executed the sale deed or not. By making the above submission it is requested to allow the present petition.

The present petition is opposed by Shri Parmar, learned advocate appearing on behalf of the private Respondents. It is submitted that as no illegality has been committed by the revisional authority-State Government by allowing the Revision Application by quashing and setting aside the order passed by the Collector, Panchmahals, it is requested to dismiss the present petition.

Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted that the dispute is with respect to mutation entry No. 2965. It is not in dispute that so far as the Petitioner is concerned, he claims that he has purchased the aforesaid land in question by registered sale deed. Considering the decision of the learned Single Jude of this Court in the case of EVERGREEN APARTMENT CO-OP. HOUSING SOCIETY (Supra), the revenue authority is bound to make necessary entry in the revenue record on the basis of the registered sale deed. As per the settled proposition of law laid down by this Court in catena of decisions the revisional authority has no jurisdiction to decide the validity and legality of the sale transaction, and if it is found that by such transaction/sale, there is breach of any other law, in that case, authority is required to make reference to the appropriate authority for initiating appropriate proceedings for which the breach is alleged and the said authority is required to consider the same in accordance with law on its own merits. It is also settled proposition of law that as such the mutation entry in the revenue record does not confer any right, title or interest in favour of any person and it is only for fiscal purpose. Even considering the order passed by the Collector, Panchmahals giving a finding that there is no fragmentation by the sale transaction also cannot be sustained as the Collector, Panchmahals was exercising revisional jurisdiction against the dispute with respect to the mutation entry and, therefore, the Collector, Panchmahals also could not have given an opinion or finding in the said Revision Application that there is no breach of provisions of Fragmentation Act and, therefore, to that extent, the revisional authority is justified in quashing and setting aside the order passed by the Collector, Panchmahals. However, at the same time, necessary mutation entry is required to be made in the revenue record subject to initiating appropriate proceedings by appropriate authority for the alleged breach of provisions of Fragmentation Act and subject to the rights of other co-owners to challenge the sale deed in favour of the Petitioner before appropriate Civil Court, which may be considered in accordance with law on its own merits.

In view of the above, the present Special Civil Application is partly allowed by quashing and setting aside the order passed by the revisional authority i.e. Deputy Secretary (Appeals), Revenue Department, State of Gujarat dated 29/04/1995 in Revision Application (SRD) No. 59/1993 directing the appropriate authority to mutate the name of the Petitioner in the revenue record on the basis of the registered sale deed, however, the same shall be subject to the proceedings that may be initiated by the appropriate authority for the alleged breach of provisions of Fragmentation Act and subject to the rights of the private Respondents herein, who claim to be the co-owners, to challenge the sale deed in favour of the Petitioner, which may be considered by the appropriate Civil Court in accordance with law on its own merits and on the basis of the evidence led, without, in any way, being influenced by the mutation entry pursuant to the order passed by this Court.

With this, the present petition is allowed. Rule is made absolute to the aforesaid extent. No cost.