1. Heard learned advocate for the parties. The petitioner has approached this Court by this petition under Article 226 of the Constitution of India with following prayers:
"A. Your Lordships may be pleased to admit and allow this Special Civil Application;
B. Your Lordships may be pleased to quash and set aside the order dated 02.09.2011 pertaining to Entry No. 6623 and direct the Mamlatdar, Kotda Sangani to forthwith mutate the name of the petitioner in the revenue records;
C. Pending admissions, hearing and final disposal of the present petition, your Lordships may be pleased to direct the mutation of the name of the petitioner in the revenue record upon conditions as may be imposed by this Hon'ble Court;
D. Your Lordships may be pleased to grant exemplary costs and grant any further relief, which may be deemed fit, in the facts and circumstances of this case."
2. The facts in brief leading to filing this petition deserve to be set out in are as under:
2.1 The property, for which the respondent No.3 has approached for mutating the record of rights was in possession and ownership to one Shri Nilesh Savjibhai Patel, as he was adjudged the highest bidder which originally belong to M/s. Sardar Cement (in liquidation). The auction was held under the auspice of this Court, as ordered by this Court (Coram: Hon'ble Mr. Justice Jayant Patel) vide order dated 20.09.2007 in OLR No. 205 of 2007. As per the order of this Court, one nominee was to be permitted, and accordingly, the present petitioner being nominee of the original bidder, executed sale deed with the Official Liquidator. The sale deed was duly executed on 03.07.2010. This execution was pursuant to, as it is stated hereinabove, order dated 20.04.2003 passed by Gujarat High Court in Company Petition No. 253 of 1998.
2.2 After the execution of the sale deed, the petitioner approached the concerned Government Department and Authorities for getting the entries mutated in the right of records. It was not certified on account of the reason stated by the concerned authorities i.e. Mamlatdar that there was a charge of the Sales Tax Department, Gondal. Therefore, till that amount is paid, the entry would not be finalized. There was another demand of revenue dues raised by Shapar Gram Panchayat. The total dues towards land revenue and education cess was shown to be Rs. 3,10,592/- and it was to be borne by the applicant only after his purchase as on 20.09.2007 and prior thereto the amount was to be borne by the Official Liquidator. The petitioner was, therefore, constrained to prefer O.J.MCA No. 22 of 2011 before this Court and this Court (Coram: Hon'ble Mr. Justice Anant S.Dave] vide order dated 03.03.2011, issued direction to the respondent to make the entry and enter the name of the applicant in the revenue record. This order is also placed on record of this petition.
2.3 Pursuant to the order passed by this Court in O.J.MCA 22 of 2011 dated 03.03.2011, the petitioner approached the Mamlatdar, Kotda Sangani, Shapar District Rajkot i.e. respondent No.3 for mutation of the entry and the entry (kachi entry) was made being Entry No. 6623. Respondent No. 3 for the reasons best known to him rejected the request for certification of the entry and indicated that on examining and studying the documents No. 12755/2010 dated 30.07.2010 it appeared to him that there was non payment of appropriate stamp duty and as per Bombay Stamp Act, 1958, the documents and transaction entered amounts to sale-cum-sale. The duty requisite was not paid. Hence, entry was rejected. This happened on 02.09.2011. Hence this petition.
3. This Court, on 24.02.2012, passed the following order:
"1. Notice for final disposal, returnable on 07.03.2012.
It is expected of the respondents to file affidavit-in-reply, if any, on or before the returnable date. Direct service is permitted."
4. As the inaction was noticed, this Court was constrained to pass the following order on 26.03.2012:
Leave to join State of Gujarat, through the Secretary, Revenue Department as Respondent no.4.
The petitioner has to file this petition as entry made in the revenue record was not certified by the Mamlatdar on the ground that the document under which the right is claimed to have accrued to the petitioner is the document which is not properly stamped and therefore, kachha entry made by the talati was not certified. Petitioner had to in fact move this Court on earlier occasion also by preferring Misc. Civil Application No. 22 of 2011, as at that time entry no. 6114 made in his name was not certified on account to recording of charge on account of sales tax due on the property. Said property was purchased by the petitioner under auction held by the Company Judge in Company Law Court proceedings.
This Court (Coram Anant S. Dave, J) while allowing this MCA vide order dated 3/3/2011, issued following direction:
"13.
Considering the above aspects and law laid down by the learned Company Judge as well as Division Bench, I am of the opinion that it is no more res integra that the attachments/lien of the department of Sales Tax which is reflected in the revenue records on the assets of the Company in liquidation which are sold to the auction purchaser cannot be continued any further. The respondent No.3 is therefore directed to remove the attachments, charge, lien, if any, on account of the dues, pertaining the pre-liquidation period of the Company in liquidation from the revenue records in respect of the assets/properties purchased by the applicant. The respondent no.3 is also directed to record name of the applicant in the revenue records in respect of the properties sold under the order of confirmation made by this Court."
Petitioner accordingly approached the revenue authorities for registration of his lien and right in the record of right. Once again concerned Talati-Cum-Mantri made an entry on 19/3/2011 in accordance with Court's order, however the concerned Mamlatdar vide his order dated 2/9/2011 did not approve the same on the ground that after studying the document registered with Sub Registrar Office, Gondal, bearing Index No. 12755/2010 dated 30/7/2010 it appeared to him that the stamp duty paid on the document was less than the prevalent rate, commonly known as 'jantri' in local parlance and Annual Statement of Rate, this being an incident of 'sale cum sale and no due stamp duty' is not certified.
The Court called upon learned AGP Ms. Archana Raval to indicate as to whether the concerned Mamlatdar acting under provision of Chapter
-XA is in any way empowered to raise the issues and question for not certifying the entry made by Talati Com Mantri . Learned AGP could not point out any provision out of the land revenue record justifying such a refusal. Hence this Court is of the considered view that the Secretary of Revenue Department, Respondent no.4 shall himself examine this case and file an explanation by way of affidavit indicating the following, namely:-
1) When the Court's order in para no. 13 in MCA No. 22 of 2011 dated 3/3/2011 was unequivocally clear and when no attempt was made to seek any clarification from any quarter, namely either AGP or G.P., or the District Collector, how the Mamlatdar can disobey the said order as the last three lines of the order leaves no room for any rejection. Assuming for the sake of examining without holding that there is possibility of interpretation that the direction was qua removing the impediment in the form of sales tax charge, but apart there from, if there was any other infirmity in the document, then, there was a scope for refusing the entry to be made. But this interpretation is also not permissible under power of implementing authority. Had this been the reason nothing prevented the implementing authority to seek appropriate clarification either from his superiors or from learned GP. In the instant case there appears to be none on the record. Therefore prima facie this Court is of the view that concerned Mamlatdar has flouted the order without any rime or reason on his part.
2) The respondent no.4, newly added party, shall also explain under which provision of law there can be examination to document at the end of Mamlatdar when the document is presented to him under provision of Chapter- XA of Bombay Land Revenue Code 1879, on the ground of so called deficit of stamp duty.
3) The respondent no.4 is also hereby called upon to make statement on oath in the affidavit that under which provision of law said Mamlatdar while making order at page-44 can exercise power of the officer or competent officer appointed under the Gujarat Stamp Act, 1958 (Amended Act No. 15 of 2011) The affidavit explaining aforesaid shall be filed on or before 2/4/2012. In the meantime it would be open to the concerned authority, if they are unable to justify stand of the Mamlatdar to record the entry or correct their mistake and certify the entry. Even if the entry is certified, concerned officer is not absolved of his duty to file affidavit on 2/4/2012. In case if the affidavit is not filed, then, the Revenue Secretary is hereby directed to present himself before this Court at 11.00 '0' clock.
Copy of this order be made available to learned AGP Ms. Archana Raval, for its onward communication and compliance. Adjourned to 2/4/2012."
5. Pursuant thereto an affidavit is filed by one Shri S.A.Golakia, Secretary (L.R.) wherein it is stated that by way of Gujarat Act No. 7 of 2010 dated 31.03.2010, amendment is made in Bombay Land Revenue Code by adding Section 135 D(8) whereunder the certifying officer is entitled to refuse certification if he has reason to believe that such mutation entry violates or contravenes any of the provisions of the Act or any other Act, and shall communicate reasons in writing to the person concerned. The deponent of the affidavit has further averred in the affidavit that the Mamlatdar appears to be under bona fide impression that the document was insufficiently stamped and hence, he might have refused the certification and it further averred that the Collector, Rajkot was directed by letter dated 31.03.2012 to take the disputed entry into revision and copy is also produced on record and it is averred that Mamlatdar has already made the entry of document presented before him manually, in pursuance of the instructions of Collector Rajkot issued to the Mamlatdar and thus now no grudge has survived.
6. Learned advocate for the petitioner invited this Court's attention to the entry made. The entry is not made as it is merely suggesting that it awaits its certification. The deponent of the affidavit in reply has stated as under:
"
4. However, I state that, the Collector Rajkot was directed by letter dated 31.03.2012 to take disputed entry into revision, copy of letter dated 31.03.2012 is annexed herewith and marked as Annexure R 2. I state that the Mamlatdar ha now already made the entry of document presented before him manually, in pursuance of the instructions of Collector Rajkot issued to the Mamlatdar, and thus now no grudge has survived."
7. The averments made by deponent of the affidavit clearly suggests that now petitioner's grievances would not survive and on that basis, learned Assistant Government Pleader submitted that this petition be disposed of. This Court is of the considered view that the deponent of the affidavit is ignorant of the fact that the entry is not an entry in the eye of law, and therefore, his claim in the affidavit in reply is patently incorrect which may amount to making written statement or false statement before the Court or may be he has not been correctly informed by his subordinates with regard to the entry in question. The Court, at this stage, does not want to go into fine questions of Mamlatdar's authority to question the duly stamped documents and on that basis refusing the registration or canceling the entry. At this stage, the Court is of the considered view that appropriate Notice to said Mamlatdar as well as the Revenue Secretary is required to be issued so that in personal capacity they may file their affidavit to indicate as to in what manner non-compliance of the order is to be explained and why action for misleading the Court may not be initiated. Mr. H.M.Hasit, Mamlatdar, Kotda Sangani, Dist. Rajkot, who has been responsible for the entry as well as deponent of the affidavit Mr. S.A.Golakia, Secretary (L.R.) shall file their respective affidavit explaining their conduct by 30.04.2012. In case if no reply is filed by 30.04.2012, the chief Secretary of the State shall personally present before this Court.
8. Thus, in view of the aforesaid observations and prima facie finding the Revenue Secretary who has filed the affidavit and whose affidavit contains prima facie incorrect statement shall file affidavit answering as to why the contempt proceedings under the contempt of Court Act for making incorrect statement may not be initiated against him, and the concerned Mamlatdar for not complying with the order of this Court. These affidavits are to be filed on or before 30.04.2012 and in case, if two affidavits are not filed, then as could be seen from the record, there seems to be deliberate attempt to avoid mutation in the record of the rights for no reason whatsoever. Therefore, it is prima facie failure on the part of the State machinery. The Chief Secretary himself shall remain present before this Court at 11.00 a.m.. This order may be made available to Learned Assistant Government Pleader for its communication and compliance today.
[S.R.BRAHMBHATT, J.] Jyoti Top