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SCA/5876/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5876 of 2010
=========================================================
DHULAJI
SHANKERJI SINCE DECD. THROUGH HEIR-BHIKHAJI DHULAJI - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 4 - Respondent(s)
=========================================================
Appearance
:
MR
MB GANDHI for
Petitioner(s) : 1,MR CHINMAY M GANDHI for Petitioner(s) : 1,
MR
PRANAV DAVE ASST.GOVERNMENT PLEADER for Respondent(s) : 1 - 2.
NOTICE
SERVED for Respondent(s) : 1 - 2.
NOTICE SERVED BY DS for
Respondent(s) : 3 - 5.
MR BS PATEL for Respondent(s) :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 21/07/2010
ORAL ORDER
By
way of this petition under Article 226 of the Constitution of India,
the petitioner has prayed for the following main reliefs in para
17:-
(a) This
Hon’ble Court be pleased to issue a writ of mandamus and/or any other
appropriate writ, order or direction in the nature of mandamus
holding and declaring that the entry No.1480 dated 15.01.1990 which
is effected retrospectively is illegal and void and the same be
quashed and set aside.
(b) By
appropriate writ, order or direction, this Hon’ble Court be pleased
to hold and declare that the petitioner
is entitled to hold the possession of 4 Acres and 1
Guntha as the owner of the land of Survey No.259 and Old Survey
No.478.
(c) By
appropriate writ, order or direction, this Hon’ble Court be pleased
to hold and declare the Annexure-F in which the reduced land in the
name of the petitioner
is shown as 1 Hactare and 45 Gunthas as illegal and
Annexure-F be quashed and set aside and the entries thereof which are
reflected be also quashed and set aside.
(d) This
Hon’ble Court be pleased to hold and declare that the petitioner
is in possession of the land admeasuring 4 Acres and 1
guntha and the same cannot be reduced under any circumstances.
Having
heard Mr.M.B. Gandhi, learned advocates appearing on behalf of the
petitioner
and Mr.Patel, learned
advocate appearing on behalf of the private
respondents it appears that the reliefs prayed by the petitioner
two folds, (i), challenging the Mutation Entry
No.1480 dtd.15/1/1990 and another is with respect to ownership and
possession of 4 Acres and 1 Guntha of land of Survey No.259 and
Old Survey No.478. As such, the petitioner
cannot be permitted to challenge the mutation entry
which was made in the year 1990. Even otherwise as per the settled
law, mutation entry does not confer any right, title or interest in
favour of a person whose name is mutated in the revenue record. The
same are for fiscal purpose for collecting tax. Mutation Entry can
be challenge before the appellate authority / revisional authority
as provided under Rule 108 of the Land Revenue Rules and therefore,
the dispute with respect to mutation entry straightway cannot be
considered in a petition under Article 226 of the Constitution of
India.
Now,
so far as the other reliefs sought by the petitioner
are with respect to ownership and right claimed by the petitioner
and possession of the disputed land in question and
it appears that there is a dispute between two private persons with
respect to ownership and possession, which is not required to be
considered by this Court in exercise of powers under Article 226 of
the Constitution of India. If there is any dispute with respect to
title and/or possession of the land in question, in that case, the
petitioner
and/or aggrieved party has to approach the Civil
Court for establishing right by way of claiming decree of
declaration and permanent injunction and/or even praying for decree
of possession. The aforesaid aspect being a disputed question of
fact, cannot be considered in a petition under Article 226 of the
Constitution of India. Under the circumstances, present petition is
not entertained and deserves to be dismissed and is accordingly.
Notice is discharged.
[M.R.
SHAH, J.]
rafik
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