Allowed

Amitsinh Harvindarsang Dhillon v. State of Gujarat

Gujarat HC10 Jul 2018LPA/2610/2017

Case brief

AI extract

What is this about?

This Letters Patent Appeal challenged an order relegating petitioners to an appellate forum despite the appellate authority having already remanded the matter. The High Court allowed the appeal, holding that the High Court could not permit the lower appellate authority to ignore its own remand directions to entertain a belated application by respondents, as registered sale deeds are conclusive pro

What did the court decide?

Impugned order of 29.9.2017 set aside; direction to 2nd respondent to consider petitioners' application to certify entry within 2 months after giving opportunity of hearing.

Amitsinh Harvindarsang Dhillon Vs State of Gujarat — Landlord and Tenant | Gujarat HC (2018)

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C/LPA/2610/2017 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/LETTERS PATENT APPEAL NO. 2610 of 2017

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In SPECIAL CIVIL APPLICATION NO. 22000 of 2017 With

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CIVIL APPLICATION NO. 1 of 2017

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and

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HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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AMITSINH HARVINDARSANG DHILLON

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Versus

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STATE OF GUJARAT

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Appearance: TATVDEEP J JANI(7227) for PETITIONERS VIRAL K SHAH(5210) for PETITIONERS MR KM ANTANI, ASSISTANT GOVERNMENT PLEADER for RESPONDENT NOS. 1 AND 2 DS AFF.NOT FILED (N)(11) for RESPONDENT(s) No. 1,6 MR HARNISH V DARJI(3705) for RESPONDENT(s) No. 3,4,5,6.1,6.2,6.3,6.4,6.5,7,8 MR.RUCHIR R JOSHI(7241) for RESPONDENT(s) No. 3,4,5,6.1,6.2,6.3,6.4,6.5,7,8 NOTICE SERVED BY DS(5) for RESPONDENT(s) No. 2

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Page 1 of 12

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C/LPA/2610/2017 CAV JUDGMENT

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and

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HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

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Date : 10/07/2018

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CAV JUDGMENT

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(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY)

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This Letters Patent Appeal under Clause-15 of the Letters Patent, is filed by the original petitioners in Special Civil Application No.22000 of 2017 aggrieved by the order of the learned single Judge, dated 19^th December, 2017.

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The aforesaid Special Civil Application No. 22000 of 2017 was filed with the prayers, which read as under:

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“(a) admit and allow above captioned petition,

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(b) issue a writ of certiorari or any other writ, order or direction to hold the order impugned dated 29.9.2017 passed by the respondent No.2 in Disputed Case No.5 of 2016 to be bad in law thereby quash and set aside the same;

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(c) Pending admission, hearing and final disposal of above captioned petition stay the implementation and execution of the order impugned dated 29.9.2017 passed by the respondent No.2 in Disputed Case No.5 of 2016;

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(d) grant any other and further relief/s in the interest of justice.”

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Page 2 of 12

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C/LPA/2610/2017 CAV JUDGMENT

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The appellants herein, who claim to be the agriculturists, have purchased land admeasuring 0-97-13 Hectare-AreSq. Mtrs., bearing Survey No. 56 (Old Survey No.77) of village-Piplana, Taluka-Kotada-Sangani, District-Rajkot. They have purchased the aforesaid land by registered sale deed dated 13^th December, 2006, registered at sr. no. 9301 from its original owner and possessor Bachubhai Jasabhai Koli.

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3.1. After they purchased the land, they filed an application to enter their names in the revenue record. Pursuant to the same, mutation entry no. 746 came to be made on 16^th December, 2006. Thereafter, the 2^nd respondent-Mamlatdar rejected the said mutation entry vide order dated 3^rd November, 2007 mainly on the ground that the appellants had not produced any evidence to show the clearance of the dues over the land in question and on the further ground that the appellants are not agriculturists. Aggrieved by the order of the 2^nd respondent dated 3^rd November, 2007, the appellants herein have preferred Appeal No. 63 of 2016 before the appellate authority, i.e. Deputy Collector, Rajkot. Said appeal was allowed by order dated 9^th September, 2016 and the matter was remanded to the

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C/LPA/2610/2017 CAV JUDGMENT

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2^nd respondent with a direction to the 2^nd respondent to collect the evidence from the appellants and to pass appropriate orders after hearing the appellants. It is the case of the appellants that thereafter, they have filed an application before the 2^nd respondent on 24^th October, 2016 and produced necessary evidence to prove that there are no dues over the land in question and that the appellants are agriculturists, and made a request to enter their names in the revenue record. It is their further case that on such application made by the appellants, a pencil entry came to be mutated vide entry no.1202 on 27^th October, 2016.

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3.2. Original owner Shri Bachubhai Jasabhai Koli expired on 13^th February, 2010. Though Shri Bachubhai Jasabhai Koli, the original owner, whose name was recorded in the revenue record, has sold the land by registered sale deed dated 13^th December, 2006 to the appellants, it appears that respondent nos. 3 to 8, claiming to be the heirs and legal representatives of deceased Bachubhai Jasabhai Koli, filed an application before the 2^nd respondent to enter their names in the revenue record as heirs and legal representatives of the deceased Bachubhai Jasabhai Koli. On such application

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C/LPA/2610/2017 CAV JUDGMENT

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made by them, entry no. 1200 was made on 25^th October, 2016. On such entry no. 1200 made in favour of respondent nos. 3 to 8, the appellants-original petitioners have filed objections on 4^th November, 2016 disputing the mutation of the names of respondent nos. 3 to 8. By order dated 29^th September, 2017, passed by the 2^nd respondent in Disputed Case No. 5 of 2016, the objections filed by the appellants came to be rejected and the mutation entry, which was made in mutation entry no. 1200 on 25^th October, 2016 in favour of respondent nos. 3 to 8, came to be certified.

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3.3. Challenging the order dated 29^th September, 2017

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passed in Disputed Case No. 5 of 2016, the appellants herein have filed Special Civil Application No. 22000 of 2017, which came to be disposed of by the learned single Judge vide order dated 19^th December, 2017 on the ground that the appellants herein have alternative efficacious remedy by way of appeal as provided under Rule 108(5) of the Gujarat Land Revenue Rules, 1972.

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4.We have heard the learned counsel Mr. Viral K. Shah, appearing for the appellants, learned Assistant Government Pleader Mr. K.M.Antani, appearing for respondent nos. 1 and 2 and learned counsel Mr. Harnish

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C/LPA/2610/2017 CAV JUDGMENT

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V. Darji, appearing for respondent nos. 3 to 8.

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In this appeal, it is contended by learned counsel Shri Viral K. Shah, appearing for the appellants that when the appellants herein have purchased the land from its original owner by registered sale deed, the 2^nd respondent ought to have mutated the names of the appellants based on such documents. It is further submitted that on 3^rd November, 2007, the 2^nd respondent, going beyond his jurisdiction, has refused to certify the mutation entry, which was made in favour of the appellants in entry no. 746 on 16^th December, 2016 on the ground that the appellants have not produced evidence to show that there are no dues over the land in question and further that the appellants have not produced any evidence to show that they are agriculturists. Aggrieved by the same, the appellants have approached the appellate authority by filing an appeal and the appellate authority, vide order dated 9^th September, 2016 has allowed their appeal by remanding the matter to the 2^nd respondent. It is submitted that instead of considering the application of the appellants, pursuant to the directions given by the appellate authority, the 2^nd respondent erroneously entertained the application filed by respondent nos. 3 to 8 and made an entry against which

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C/LPA/2610/2017 CAV JUDGMENT

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objections are filed by the appellants. It is submitted that when the land is transferred by the original owner based on registered sale deed, the 2^nd respondent should have acted upon such document to certify the mutation entry in favour of the appellants. It is submitted that the authority, in exercise of powers under the Gujarat Land Revenue Code, 1879 has no jurisdiction at all to go into the aspect whether a purchaser is an agriculturist or not. It is submitted that such issue is covered under the provisions of the Gujarat Tenancy and Agricultural Lands Act, 1948. It is the further submission of Mr. Shah that, when the appeal filed by the appellants is already allowed by issuing direction to the 2^nd respondent, without considering the application of the appellants, the 2^nd respondent has entertained the application of respondent nos. 3 to 8 and certified the entry by rejecting the objections of the appellants, as such, learned single Judge has committed an error in relegating the appellants to the appellate forum.

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On the other hand, learned Assistant Government Pleader Mr. K.M. Antani, appearing for respondent nos. 1 and 2 and the learned counsel Shri Harnish V. Darji, appearing for respondent nos. 3 to 8 have submitted that when there is a remedy of appeal under Rule 108(5) of the Gujarat

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C/LPA/2610/2017 CAV JUDGMENT

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Land Revenue Rules, 1972, the learned single Judge has rightly dismissed the petition. Further, during the course of arguments, it is fairly submitted by learned counsel for respondent nos. 3 to 8 that questioning the registered sale deed, the respondent nos. 3 to 8 have also approached the Civil Court to declare such registered sale deed as illegal. In that view of the matter, it is submitted that the appellants are not entitled to seek mutation of their names in the revenue record on the basis of registered sale deed. It is submitted that when the objections are considered by the authority, there is no reason to entertain the petition for grant of relief as prayed for.

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In this case, it is not in dispute that in the revenue records, the land originally stood in the name of deceased Bachubhai Jasabhai Koli. After purchasing the land by registered sale deed, the appellants herein have applied to mutate their names in the revenue records, however, their application was rejected by the 2^nd respondent on the ground that they have not produced evidence for clearance of dues over the land in question and also to show that they are agriculturists. Against such order passed by the 2^nd respondent, dated 3^rd November, 2007, the appellants herein have filed an appeal, which is allowed with a

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C/LPA/2610/2017 CAV JUDGMENT

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direction to the 2^nd respondent to accept the evidence to be produced by the appellants and to pass appropriate orders. Pursuant to such order passed by the appellate authority, the 2^nd respondent has made a pencil entry in the revenue record on 27^th October, 2016 vide entry no. 1202. Instead of considering the application of the appellants in compliance of the directions issued by the appellate authority, it appears that the application filed by respondent nos. 3 to 8 to enter their names in the revenue record is readily entertained by the 2^nd respondent and the objections filed by the appellants are rejected. When the purchase of land in question is by registered sale deed, same is conclusive proof for transfer of title and interest of the land in question. In fact, as per the 2^nd proviso to section 135C of the Gujarat Land Revenue Code, 1879, if a person purchases the land by registered sale deed, he is exempted from the obligation to report to the Designated Officer, with regard to acquisition of the rights in any land. When there is registered sale deed, which is executed by the original owner, there is no reason to entertain the application of respondent nos. 3 to 8 at the belated stage ignoring the directions issued by the appellate authority in Appeal No. 63 of 2016. As much as the appellants have

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C/LPA/2610/2017 CAV JUDGMENT

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already approached the appellate authority, when the 2^nd respondent refused to certify the entry, pursuant to the purchase of land by registered sale deed by the appellants, the learned single Judge ought not to have relegated them again to the appellate forum. It is clear from the material on record that there is no reason for keeping the application of the appellants pending consideration without disposing of the same in compliance of the directions issued by the appellate authority and to entertain the belated application of respondent nos. 3 to 8 to enter their names as heirs and legal representatives of the deceasedoriginal owner. Further, it is to be noticed that learned counsel for respondent nos. 3 to 8 has fairly submitted that respondent nos. 3 to 8 have approached the Civil Court seeking a declaration that the sale of the land in question in favour of the appellants is illegal. Unless such relief is granted by the Civil Court, the registered sale deed executed by deceased Bachubhai Jasabhai Koli in favour of the appellants holds good in proof of transfer, title and interest of the land in question in favour of the appellants. Further, it is also the case of the appellants that such belated attempt to enter the names of respondent nos. 3 to 8 is to extract further money from the appellants. The very

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C/LPA/2610/2017 CAV JUDGMENT

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fact that the original owner has sold the land by registered sale deed and there is unexplained and inordinate delay on the part of respondent nos. 3 to 8 in making application for mutation of entry by entering their names as heirs and legal representatives of the original owner, substantiates the plea of the appellants that such belated attempt is made only to extract further money from the appellants. In any event, it is to be noticed that entry made in revenue records is only for fiscal purpose and if respondent nos. 3 to 8 ultimately succeed before the Civil Court, entries will have to be corrected in accordance with the decree of the Civil Court. In that view of the matter, we are of the view that it is not a fit and appropriate case to relegate the appellants to the appellate forum again, as such, the impugned order dated 29^th September, 2017, which is the subject-matter of challenge in the Special Civil Application requires to be set aside.

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Accordingly, this Letters Patent Appeal is allowed. Consequently, Special Civil Application No. 22000 of 2017 stands allowed as prayed for with further direction to the 2^nd respondent to consider the application of the appellants to certify entry made in their favour in compliance of the directions issued in the order dated 9^th September, 2016

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C/LPA/2610/2017 CAV JUDGMENT

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passed by the Deputy Collector, Rajkot in Appeal No. 63 of 2016. Respondent authorities are directed to pass necessary orders within a period of 2 months from the date of receipt of this order by giving an opportunity of hearing to the appellants. No orders as costs.

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9.Since the main Letters Patent Appeal is disposed of, connected Civil Application stands disposed of accordingly.

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(R.SUBHASH REDDY, CJ)

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(VIPUL M. PANCHOLI, J)

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A.M. PIRZADA

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Amitsinh Harvindarsang Dhillon v. State of Gujarat

Case brief

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Amitsinh Harvindarsang Dhillon v. State of Gujarat

Case brief

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