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Judgment
K.A. Puj, J.—The applicant has filed this Misc. Civil Application praying for clarification in the judgment and order dated 13.8.2010 delivered by this Court in Company Application No. 436 of 2009. The applicant has further prayed for the direction to Respondent Nos. 2 and 3 to forthwith mutate entry in the revenue records in favour of the applicant in respect of the properties sold to the applicant vide judgment and order of confirmation of sale dated 17.1.2007 delivered by this Court in Official Liquidator Report No. 157 of 2006.
This Court has issued notice on 11.2.2011. Further order was passed by this Court on 11.3.2011 granting time to the learned Assistant Government Pleader appearing for Respondent Nos. 2 and 3 for filing affidavit-in-reply. The Court has also observed on the basis of submission made by the learned Assistant Government Pleader that after the kachcha entry was made on 23.8.2010 in Village Form No. 6, objections were received by the Mamlatdar and, thereafter, the said entry was cancelled. Subsequently an affidavit-in-reply is filed by the Mamlatdar, Anand (Rural) on 27.4.2011. Further affidavit is filed today on behalf of the applicant.
Heard Mr. N.K. Pahwa, learned advocate appearing for the applicant, Ms. Amee Yajnik, learned advocate appearing for Official Liquidator and Ms. Mini Nair, learned Assistant Government Pleader appearing for Respondent Nos. 2 and 3.
It is the case of the applicant that the applicant is the auction purchaser of the properties in question of the Company in liquidation. This Court vide its order dated 17.1.2007 passed in OLR No. 157 of 2006 confirmed the sale of the properties of the Company in liquidation covered by Lot No. VI-C for a total consideration of Rs. 20.60 crores in favour of the applicant. As per the terms and conditions of the sale the applicant has deposited the entire purchase consideration with the office of the Official Liquidator and Official Liquidator has handed over possession of the properties sold to the applicant. The Official Liquidator, thereafter, executed two sale deeds on 22.4.2010 in favour of the applicant in respect of the properties sold to the applicant.
Mr. N.K. Pahwa, learned advocate appearing for the applicant submitted that there were some proceedings taken out by third party in respect of certain parcels of land, being Survey No. 356/1. As per the requirements applicable for updating the revenue records, the Official Liquidator is obliged to file E-Dhara Form with the Revenuer Authorities describing the correct name of the properties of the Company in liquidation so as to make sure that correct name and description of the properties are recorded in the revenue records.
The applicant, therefore, filed Company Application No. 436 of 2009 before this Court which came to be disposed of on 13.8.2010 directing the Official Liquidator to take necessary steps in terms of the reliefs prayed for by the applicant in the said application. Mr. Pahwa further submitted that as per the provisions of Section 135C of Bombay Land Revenue Code, 1879, where a person acquires a right by virtue of registered sale deed, the person is exempted from the obligation to report to the Village Accountant. When a person approaches appropriate revenue authority for mutation of entry in the revenue records based on the registered document, the authority is obliged to record the entry without issuing notice as per the provisions of Section 135D of the Bombay Land Revenue Code. He relied on the decision of this Court in the case of Nathubhai Meraman Darji 1996 (3) GCD 691 in support of his submissions. He has further relied on the decision in the case of Gandabhai Dalpatbhai Patel v. State of Gujarat, decided on 25.8.2004 in Special Civil Application No. 3849 of 2004. It is clearly held in these decisions that question of following the procedure of Section 135D of the Code would not arise when a transaction is represented by a registered document. Its suo-motu cognizance is required to be taken by the Village Accountant for the purpose of its mutation in the concerned revenue record. If that transaction is disputed, the disputing party will have to approach the competent Civil Court for annulling or avoiding such transaction as provided in Section 31 of the Specific Relief Act, 1963. It would not be open to him to dispute the validity of the transaction in what is popularly known as the RTS proceedings.
Based on the above statutory provisions as well as decisions of this Court, Mr. Pahwa has submitted that Respondent Nos. 2 and 3 are under obligation to make mutation entry in the revenue record in favour of the applicant in respect of properties sold to the applicant covered by the two sale deeds executed by the Official Liquidator pursuant to the order of confirmation of sale made by this Court.
Mr. Pahwafurther submitted that despite the above legal position, the Respondent No. 3 has only made pencil entry in Village Form No. 6 on 16.6.2010 and 23.8.2010 in favour of the applicant. He has not proceeded further to record final entry despite repeated requests and reminders. He has, therefore, submitted that appropriate directions are required to be issued to Respondent Nos. 2 and 3 to make necessary entries in the revenue record mutating the name of the applicant.
On behalf of the Respondent Nos. 2 and 3 Ms. Mini Nari, learned Assistant Government Pleader submitted that pursuant to the application made by the applicant, the Respondent No. 2 has made entry No. 37974 dated 17.5.2010 with regard to sale deed in favour of the applicant. However, at the relevant point of time, stay order with respect to the said property was in operation in Lavad Case No. 396 of 1999. Therefore, Respondent No. 2 vide order dated 4.8.2010 cancelled the said entry. The order dated 13.8.2010 passed by this Court in Civil Application No. 436 of 2009 was not before the Respondent No. 2 at the relevant point of time. It is further contended that the applicant is having an alternative remedy against the said order by filing an appeal before the Dy. Collector. It is further contended that pursuant to the application made by the applicant on 6.7.2010, the Respondent No. 2 made entry No. 38413 dated 23.8.2010 with regard to Revenue Survey No. 356/1 and invited objections from the interested parties. Pursuant to the same, objections were filed by one Narsingbhai Ashabhai on 25.10.2010. As per revenue record, Revenue Survey No. 356/1 admeasuring 0.53.62 Acre is a restricted tenure land and, therefore, the provisions of Section 43 of the Tenancy Act is applicable. It is further contended that as per the Government Resolution dated 4.7.2008 issued by the Revenue Department of the State of Gujarat, restricted tenure land could not be transferred or alienated without previous permission from the Collector and without paying the premium for converting the same to old tenure land. In this view of the matter, the entry was not certified and it was cancelled on 25.11.2010.
It is further submitted that pursuant to the application made by the applicant on 10.6.2010 with regard to Survey No. 349+350+353 and 358/1+361/1/A, entry No. 38108 dated 16.6.2010 was entered in the revenue record by Respondent No. 2. However, the applicant has not produced any order to show that the land is non-agricultural and hence no entry was passed in the revenue record in respect of the same. It is further stated that the permission was granted to the Company in liquidation to purchase the said land with certain terms and conditions. One of the conditions was that the Company has to apply for industrial non-agricultural permission. But the Company in liquidation failed to do so. Therefore, vide order dated 9.12.2010 the entry was not certified and it was cancelled. Lastly, it was stated that with respect to Survey No. 358/1+2+361/1 and 349+350+353 name of Nadiad Mercantile Cooperative Bank is shown in the revenue record. The objections were raised by the Bank on 15.12.2010.
In the above view of the matter, it is requested that prayers made in the present application should not be granted.
Having heard the learned Counsel appearing for the parties and having considered their rival submissions in light of the pleadings made in the application as well as affidavit-in-reply and further affidavit, the Court is of the view that issue raised in the present application is squarely covered by the decision of this Court. Once the sale deed has been executed in favour of the applicant, by virtue of the provisions contained in Section 135C of the Bombay Land Revenue Code it is obligatory on the part of the revenue authorities to effect necessary entries in the revenue record mutating the name of the applicant. In such a situation it is not necessary for the revenue authorities to follow procedure prescribed in Section 135D of the Code. The Court has in no uncertain taken the view that if there is any dispute with regard to mutation entry the disputing party should approach competent Civil Court for avoiding such transaction as provided in Section 31 of the Specific Relief Act, 1963. The Revenue Authority cannot dispute the validity of the transaction in RTS proceedings. When the position in law is clear and well settled, the dispute raised by the Respondent No. 3 in affidavit-in-reply cannot be adjudicated. The objections raised by Shri Manibhai Jivabhai Gohel were not entertained by this Court in Company Application No. 158 of 2009 and OJ Appeal filed there against was also dismissed. So far as objections raised by Narsingbhai Ashabhai is concerned, the applicant filed Company Application No. 278 of 2010 challenging proceedings of Tenancy Case No. 15 of 2010 and 16 of 2010 as well as Tenancy Case No. 47 of 2009. Similar prayer was made qua Case No. 1 of 2009 which came be dismissed be Dy. Collector, Anand. Company Application No. 278 of 2010 came to be allowed on 26.4.2010. Even the objection raised by Mercantile Cooperative Bank is concerned, the Division Bench of this Court has observed that the entry recorded will have evidentiary value as unsecured creditors of the Company and it would not be termed as creation or maintenance of any charge over the property of the company in liquidation.
In the above view of the matter, the cancellation of kachcha entry refusal to make final entry by Respondent Nos. 2 and 3 is not justified. The revenue authorities are under obligation to mutate entry giving effect to the registered sale deed. The Court, therefore, allows this application and directs the Respondent Nos. 2 and 3 to mutate entry in the revenue record in favour of the applicant in respect of the properties sold to the applicant vide judgment and order of confirmation of sale dated 17.1.2007 and in respect of which, sale deeds have already been executed by the Official Liquidator in favour of the applicant.
It is, however, made clear that by issuing directions for mutating entries in the revenue record in favour of applicant, no title is conferred in favour of the applicant as the applicant derived his title by getting the sale deed executed in his favour pursuant to the sale confirmation order passed by this Court.
With these observations, this application is accordingly disposed off.