(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This appeal is at the instance of original petitioner and is directed against judgment and order dated 29.10.2010 passed by learned Single Judge of this Court in Special Civil Application No.4548 of 2010 and thereby, learned Single rejected the writ petition confirming the orders passed by the Revenue Authorities cancelling Entry No.1778 mutated in the record of rights dated 21.12.1989 in favour of the petitioner pertaining to land bearing Block No.28 situated at Village Niyol, Tal. Palsana.
2. Facts giving rise to this appeal may be summed up thus :
The appellant - original petitioner was the occupier of land at Village Niyol, Tal. Palsana bearing Block No.28 admeasuring Acre-0-05 Guntha and Block No.27 Acres-0-04 Gunthas. The petitioner was put in possession of the land in question by virtue of family arrangement partitioning the ancestral land. The arrangement was between petitioner and one Bhikhabhai Lallubhai Ahir. On 21.12.1989, the family arrangement of partition was brought to the notice of Talati of Village Niyol, who mutated entry No.1778 in the revenue records giving effect to the said partition deed. On 08.02.1990, the said entry also came to be certified by the Mamlatdar, Palsana. After a period of almost six years, the Collector, Surat took the Entry No.1788 in review in proceedings No.RTS/Revision/Case No./Palsana/REG.149 and issued a show-cause notice under Rule 108(6) of the Gujarat Land Revenue Rules calling upon the petitioner and Bhikhabhai Lallubhai Ahir to show cause as to why the entry should not be cancelled as the same is illegal being in contravention of the provisions of the Bombay Tenancy and Agricultural Lands Act and Hindu Succession Act. On 10/19.08.1996, the Collector, Surat passed an order cancelling Entry No.1788 dated 21.12.1989 pertaining to Village Niyol, Tal. Palsana by holding that the land bearing Block Nos.26, 27 were running in the name of Bhikhabhai Lallubhai and the part of the land was given to his nephew Jagubhai Mithabhai and Jagubhai Mithabhai was not falling in the straight line heir and therefore, there is a breach of the provisions of Hindu Succession Act. The Collector, Surat further held that no deed has been executed in the name of Jagubhai Mithabhai Ahir and the transfer is only with a view to give Jagubhai a status of an agriculturist within the State of Gujarat and therefore, said entry is in contravention of the provisions of the Tenancy Act, Hindu Succession Act, Transfer of Property Act and Registration Act.
3. Being aggrieved and dissatisfied by the order dated 19.08.1996 passed by the Collector, Surat, the appellant herein preferred revision application before the Secretary Revenue (Appeals), State of Gujarat. Respondent No.1 herein also rejected the said revision application confirming the order of the Collector. Feeling aggrieved by the order passed by respondent No.1, the appellant herein preferred petition being Special Civil Application No.4548 of 2010. Learned single Judge rejected the petition observing as under :
"5.0 As a result of hearing and perusal of the documents on record it is found that hearing was held on 28.05.1996. The petitioner could not remain present before the authority. However, the decision was taken on 10/19.08.1996. It is required to be noted that from 28.05.1996 till the decision was taken and received by the petitioner, the petitioner has not moved any application for giving opportunity of hearing. Hence, it will not be appropriate to re-open the case on the ground of violation of principles of natural justice after almost 14 years. However, a contention was raised by learned advocate for the petitioner that the Collector, Surat initiated suo motu proceedings after almost 6 years from the date of the mutation entry and issuance of certificate thereof. However, the transfer being illegal, in my view, it will not be appropriate to re-open the case since the original transfer is contrary to the provisions of law. It is also found that lands in question are self acquired property of Bhikhabhai Lallubhai and the said properties are not ancestral property and petitioner does not seem to be straight line heir of Bhikhabhai Lallubhai and therefore, there is breach of provisions of Registration Act and Hindu Succession Act.
6.0 In the premises aforesaid, the orders passed by the authorities are just and proper. No interference is called for. The petition stands dismissed. Notice is discharged with no order as to costs. Interim relief, if any, stands vacated."
4. Feeling aggrieved by the judgment and order passed by the learned Single Judge rejecting the writ petition, the appellant - original writ petitioner has come up before this Hon'ble Court in appeal.
5. We have heard learned advocate Ms. Kruti M. Shah appearing for the petitioner and learned AGP Mr. Pranav Dave appearing for respondent Nos.1 and 2. Though respondent Nos.3.1 to 3.5 have been served, they have not chosen to appear before this Court.
6. It is an undisputed fact that on the strength of a deed of family arrangement, an Entry No.1788 came to be mutated in the record of rights by the Talati of Village Niyol. This entry also came to be certified by Mamlatdar, Palsana on 08.02.1990. Almost after a period of about six years, the Collector, Surat, took the entry in suo motu review in exercising the powers under Rules 108(6) of the Gujarat Land Revenue Rules and cancelled the same on assumption that the same is in violation of the Tenancy Act, the Hindu Succession Act, the Transfer of Property Act and the Registration Act.
7. Learned Single Judge appears to have confirmed the orders passed by the respondent authorities below on the ground that the transfer of land by way of such a deed of family arrangement can be termed as 'illegal' and secondly, the lands in question are self-acquired property of Bhikhabhai Lallubhai and are not ancestral property and therefore, the appellant herein - original petitioner does not seem to be a straight-line heir of Bhikhabhai Lallubhai.
8. There are two questions involved in this appeal; (i) Whether the entry, which was mutated in the year 1989, could have been taken up in review after a period of about six years on assumption that the mutation is in violation of some provisions of law ? and (ii) Whether the Collector, exercising the powers under the Bombay Land Revenue Code, could have reached to the conclusion that the entry is in breach of other enactments, like; the Bombay Tenancy Act, the Transfer of Property Act, the Registration Act and the Hindu Succession Act ?
9. We are of the view that learned Single Judge ought to have quashed and set aside the orders passed by the revenue authorities below only on the ground of delay. It is a settled position of law by now that even if the order is void, the same has to be so declared by a competent forum within a reasonable period of time. In the present case, we find that almost after six years, the entry was taken in suo motu review and is cancelled.
Secondly, it is also a settled position of law so far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, that the entries made in the revenue records have primarily fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by the competent authorities under special enactments. Independently, the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entry on an assumption that the transaction recorded in the entry are against the provisions of the particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Thus, on this ground also, the orders of the Collector and the Secretary Revenue (Appeals) appear to be beyond their jurisdiction. We are of the view that these aspects have been overlooked by learned Single Judge while rejecting the petition.
10. In the aforesaid view of the matter, we find merit in this appeal and allow the same. The judgment and order passed by the learned Single Judge dated 29.10.2010 is hereby set aside. Main petition being Special Civil Application No.4548 of 2010 is hereby allowed and the prayer in terms of paragraph 7(b) is hereby granted.
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Dave, J.] Sd/-
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Pardiwala, J.] #MH Dave Top