(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the order dated 12.7.2000 passed the learned Single Judge of this Court in Special Civil Application No.7738 of 2000; whereby, the learned Single Judge, for the reasons recorded in the order, has dismissed the petition of the appellants / original petitioners.
2. The brief facts are that the forefathers of the appellants herein was holding the agricultural land bearing Survey No.121, Block No.158, ad-measuring 0 Acre and 8 Gunthas. The said property was sold to respondent No.2 herein by executing the sale-deed, after having received the sale consideration. The revenue entry was also mutated in the revenue record vide entry No.4315 dated 17th August, 1994. After the revenue entry was mutated for sale of the land by the original owner in favour of respondent No.2 herein, it appears that proceedings came to be initiated under Section 9 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (herein after referred to as ‘the Act’) by issuance of the show cause notice dated 7.6.1995. The appellant as well as the purchaser, respondent No.2 herein, appeared before the District Collector and contended that there is no power to issue the notice and the land in question was not covered by the Act since it was not fragmented and it was submitted that before recording the entry No.827 for fragment, no notice was served to the original owner and not only that but the provisions of Section 7 of the Act would not be applicable. It was also contended that the land has been transferred for construction and the land is also converted for non agricultural use and all surrounding lands are also converted for non agricultural uses and hence, the notice shall be treated as invalid and the notice be withdrawn. The Deputy Collector considered the matter under the Act and found that notice was not issued for the revenue entry No.827;whereby, the land was treated as fragment and therefore, it was found that, if the entry was mutated without issuing the notice to the owner, it cannot be treated as fragment and therefore, there is no breach of Section 7 of the Act and consequently, no proceedings under Section 9 of the Act are called for and therefore, vide order dated 19.10.1995, he withdrew the notice and dropped the proceedings.
3. Surprisingly, the appellant herein, original petitioner though represented before the Deputy Collector that there is no breach of the provisions of the Act and the sale cannot be said as illegal by taking the same stand as it was taken by the purchaser, preferred revision before the State Government against the order of the Deputy Collector under Section 35 of the Act. The State Government did initiate the proceedings and ultimately, found that the entry No.827, for treating the land in question, as fragment, was mutated, without recording that notices were given and further the land was converted as non agricultural land and hence, no useful purpose would be served and therefore, dismissed the revision and the order of the Deputy Collector was confirmed.
4. The original petitioner-appellant herein preferred the writ petition before this Court challenging the said order of the State Government being Special Civil Application No.7738 of 2000. The learned Single Judge found that there are concurrent findings of fact by both the lower authorities and hence, no interference is called for. Learned Single Judge also found that the nearby land are converted for non agricultural use and therefore also, the petition does not deserve to be entertained. Ultimately, the learned Single Judge dismissed the petition summarily. Under the circumstances, the present appeal before the Division Bench of this Court.
5. We have heard Mr.Chauhan, learned counsel appearing for Mr.J.M.Patel and Mr.Devnani, learned AGP for respondent No.1- State of Gujarat and Mr.Shivang Shukla with Ms.Trusha Patel for respondent No.2.
6. It appears from the record that following aspects are undisputed.
(i) The forefathers of the original petitioner Mr.Manilal Chhaganlal was holding the land in question. He expired on 28.7.1988 and the petitioners acquired the so called rights over the land in question.
(ii) The original petitioners, appellants herein have executed the sale-deed dated 4.2.1994 after having received the full consideration.
(iii) No material has come on record for serving the notice at the time when the sale-deed was executed that it was disclosed by the original petitioner that the land is a fragmented and covered by the provisions of the Act and the transfer or sale without prior permission was not permitted.
7. As stated in the order of the first Authority i.e. the Deputy Collector, when the notice was issued for initiation of the proceedings, reply was filed on behalf of original petitioner as well as on behalf of respondent No.2 herein, the purchaser of the property, was common and the contentions were that (1) the requisite notice was not issued before making entry in the revenue record vide entry No.827 (2) that it is a fragment and (3) that the nearby lands are converted for non agricultural use (4) It was specifically contended that the provisions of the Act are not applicable and the sale is legal and valid.
8. Mr.Chauhan, learned counsel appearing for the appellant made an attempt to contend that the stand, as recorded in the order of the Deputy Collector, was only of the respondent No.2 herein, the purchaser of the property and not of the appellant – original petitioner and he submitted that in the memo of revision before the State Government, such aspect was agitated and the revisional jurisdiction was exercised.
9. As such, the recital and the statement made in the judgment are to be accepted as correct unless a cogent and reliable material is produced. The original petitioner has not produced the copy of the written reply submitted by the lawyer, who was common representing the original petitioner as well as the purchaser before the Deputy Collector. Therefore, in absence of any cogent material, the matter cannot be considered, on the basis that the stand so taken and as recorded in the order of the Deputy Collector, was not of the original petitioner, appellant herein.
10. Mere statement made in the revision, even if it is there, cannot be said as cogent material to contradict or to disbelieve the statement recorded in the judgment of the first authority. Under the circumstances, if the matter is to be considered in light of the aforesaid alteration of the stand taken before the Deputy Collector and that before the State Government on behalf of the original petitioner, the conduct can hardly be countenanced and it can rather be said that the same deserves to be deprecated. We may also record that our aforesaid observations are in absence of any cogent material produced by the original petitioner by production of written reply submitted and so considered by the Deputy Collector in the judgment.
11. Apart from the above, even if it is considered that the same was not for acceptance of the sale as valid by the original petitioners before the Deputy Collector then also, it is not in dispute that the original petitioners are the persons, who have pocketed the full consideration of the sale of the property and thereafter, they contended that the sale be treated as in breach of the Act being fragment. If the matter is to be considered on the principle of equitable jurisdiction of this Court, either under Article 226 and/or 227 of the Constitution of India, such conduct would dis-entitle the original petitioners to invoke the jurisdiction of this Court much less the appellate powers by way of intra court appeal.
12. It is not the case of the original petitioners that any notice was served to the affected parties and thereafter, the revenue entry No.827 was mutated but the contention of the learned counsel for the appellant is that once the revenue entry is mutated, there will be common notification for declaring the land as fragment and no notice is required, even if, such aspect is entered in the revenue record. He further submitted that once the entry is mutated in the revenue record, the presumption would be that all procedure are followed and therefore, it was not open for the authority to consider that the entry cannot be relied upon for considering the land as fragment by the provisions of the Act for the purpose of transfer.
13. Section 135-D of the Bombay Land Revenue Code reads as under:
135D, Register of mutations and register of disputed cases:- (1) (a) The designated officer shall enter, manually or electronically by the automated process, in a register of mutations, every report made to him under section 135C or any intimation of acquisition or transfer of any right on land made to him, either manually or electronically under section 135C from the Mamlatdar, or a court of law.
(b)(i) When a claim or document of rights is produced before the designated officer, he shall, through bio- metric ID or any other mode as may be prescribed, verify the identity and the lawful rights of the transferor and the transferee.
(ii) Upon completion of verification, the necessary entries shall be made in the register of mutations in the manner as may be prescribed and the notice of the transaction under section 13D shall be served to the persons interested therein.
(2) Whenever a designated officer makes an entry, either manually or electronically in the register of mutations, he shall at the same time intimate to all persons appearing from the record of rights or register of mutations to be interested in the mutation and to any other person whom he has reason to believe to be interested therein in the manner as may be prescribed.
(3) xxxx
(4) xxxx
(5) xxxx
(6) xxxx
(7) xxxx
(8) xxxx
(9) xxxx”
14. The aforesaid is a mandatory requirement, which cannot be dispensed with, if any entry in the revenue record is to be considered for any adverse effect upon the rights of the land holder. It is not the case of the original petitioners that any notice was served upon the deceased Manilal and thereafter, the entry was recorded but the contention is that, no notice was required or in alternative, once the entry is mutated, it is to be presumed that all procedure are followed. The entry may have presumptive value when such aspect is not examined. As per the report of Talati, no record was available for issuance of notice and even in the entry, it is not stated that any notice was ever served. Hence, it is not possible to consider that the presumption for all procedure including that of mandatory procedure would be attracted. Further, the attempt to contend that no notice is required is ill- founded and is running counter to the mandatory requirement of Section 135-D of the Act.
15. Mr.Chauhan, learned counsel for the appellant further contended that when any land is declared as fragment, no alteration in the right takes place and therefore, it is neither the acquisition of right in the property and hence, Section 135-D (2) will have no applicability. Such a contention in our view is to be recorded just for rejection since Section 135-D(2) is applicable in a case of all entries to be mutated in the revenue record and its obligation is not dependent upon only in a case where the transfer of alteration of rights are there. Further, even if it is considered that it is to apply in alteration of right, once a person is holding land and such land is to be declared as fragment, it may create clog over the rights and therefore, adverse effect. Unless it is made known to him, such cannot be given effect more particularly, in a revenue record when the requirement under Section 135-D (2) is also for issuance of notice to the persons interested or there is a reason to believe that such person is interested in the said revenue record. Hence, contention is misconceived and cannot be accepted.
16. On the aspects of findings of fact, issuance of notice before the entry No.827 was mutated, there is concurrent finding and no material was produced before the lower authorities and it is not even a case of original petitioners that any notice was served. Under these circumstances, if both the Authorities have taken the view that proceedings under Section 9 for the alleged breach of provisions of the Act does not deserve to be taken or dropped, such view cannot be said as arbitrary or unjust which may call for interference. Therefore, as such, on the said aspects, we agree with the view taken by the learned Single Judge in the impugned judgment.
17. The attempt was made by Mr.Chauhan, learned counsel appearing for the appellant to contend that it was required for both the authorities and so by this Court to consider the object of the Act. If the transaction was void or barred by the provisions of the Act, the Authority ought to have given effect and the Court ought to have interfered with the order of the lower Authority for declining to treat the transaction as void. He, therefore, submitted that on that aspects orders of both the authorities and also of the learned Single Judge deserve interference.
18. As observed earlier, if this Court is to find that the litigant has invoked the jurisdiction not in bona-fide or that interference by this Court would frustrate the ends of justice, the Court may decline to entertain the petition or may not entrust the writ to such person. When the original petitioners, the appellants herein are the persons who have pocketed the money and have executed the sale-deed in favour of the purchaser and when they are party to the transaction, they cannot say that the transaction was barred by the provisions of the Act. No attempt is made to return the consideration prior to invoking the jurisdiction of the Authority i.e. of the State Government. As recorded earlier, before the Deputy Collector, the stand was to maintain the transaction. Such conduct shows that there is extraneous consideration to challenge the decision of the Authority when the prayer of the original petitioners for dropping of the proceedings under the Act was accepted. The one who is party to the action for sale of the property, cannot be permitted to invoke the jurisdiction on the ground as sought to be canvassed while exercising the power under Article 227 or even Article 226 of the Constitution. If such litigant are permitted to invoke the jurisdiction, it would result into allowing the present appellant to take undue benefit of their own wrong. The aforesaid is coupled with the circumstances that before the Deputy Collector at the first instance when the proceedings were initiated, the stand of the petitioners was that there is no breach and the sale is in accordance with law and the provisions of the Act has no applicability. Under these circumstances, we find that if the principles of equity are considered, the conduct of the appellants herein – original petitioners is such that he should not be permitted to invoke the discretionary jurisdiction of this Court under Article 226 and/or 227 of the Constitution of India. Notwithstanding the aforesaid conduct, we have examined the merits and have found no substance.
19. In our view, considering the facts and circumstance, it appears that the present litigant is not at all bona- fide and is with extraneous consideration. The conduct of the petitioner is with a view to take undue benefit and not bona-fide. Therefore, even when we find that no interference is called for to the order of the learned Single Judge, it would be appropriate to impose cost and rather exemplary cost upon the appellant – original petitioner.
20. Hence, in view of the aforesaid observation and discussion, we find that the appeal is meritless and deserves to be dismissed and hence, dismissed.
21. Considering the fact and circumstances, the appellant shall pay cost of Rs.20,000/- to respondent No.2 herein and Rs.5,000/- to the respondent No.1. The amount of cost shall be paid by the appellant within 4 weeks, failing which, action shall be taken in accordance with law.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) (ashish)