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SCA/7565/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7565 of 2011
With
CIVIL
APPLICATION No. 10138 of 2011
In
SPECIAL
CIVIL APPLICATION No. 7565 of 2011
=========================================================
BHAYABHAI
VAJSHIBHAI HATHALIA & 5 - Petitioners
Versus
STATE
OF GUJARAT & 4 - Respondents
=========================================================
Appearance :
MR
MIHIR JOSHI WITH MR SP MAJMUDAR
for Petitioners: 1 -
6.
MS VS PATHAK AGP for Respondent : 1-3,
NOTICE SERVED BY DS
for Respondents: 5.2.3, 5.2.4, 5.3.1, 5.3.2,5.3.3 None for
Respondents : 4 - 5, 5.2.5
MR MIHIR THAKOR WITH MR DHAVAL D VYAS
for Respondents : 4.2.1, 4.2.2, 4.2.3, 4.2.4, 4.2.5, 4.2.6,
4.2.7,4.2.8
MS MEGHA JANI WITH MS ANUSHREE KAPADIA for
Respondents : 5.1, 5.2.1, 5.2.2 and 5.5.1
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 08/11/2011
10/11/2011
COMMON
ORAL ORDER
Heard learned advocates for the
parties.
Learned counsels for the parties
have in fact advance submissions at length and they have agreed for
final disposal of the matter at the admission stage. Hence, Rule.
Ms. Pathak,learned AGP, Mr. Dhaval D. Vyas and Ms. Anushee Kapadia,
waives service of Rule on behalf of respective respondents.
The petitioners, opponents in the
Appeal being Appeal No. 82/2010-2011 before the District Collector,
Jamnagar in respect of the subject matter of lands mentioned
therein, have approached this Court under Article 226 of the
Constitution of India challenging the order passed by the District
Collector along with the Appeal No. 82 of 2010-11 filed by present
respondent nos. 5/1 to 5/4, whereunder, the District Collector
revoked and cancelled the order dated 8.3.2011 granting N.A.
Permission in favour of the petitioners as the litigations in form
of civil suit mentioned in the order are pending in the Civil Court
holding that the title to the land is not clear. The said order was
required to be revoked.
Facts in brief leading to file
this petition, as could be culled out from the memo of petition
deserve to be set out as under:
The
lands in question i.e. land bearing Survey Nos. 665/a, 665/2, 43/1
and 43/2 of village: Dwarka, District: Jamnagar belonged to one
Kanabhai Varsang Nagesh. After demise of Kanabhai V. Nagesh, entry
No. 334 came to be mutated to that effect. The said entry indicated
the demise of Surabhai Kanabhai Nagesh and in that entry, present
respondent no.5/1 and other appellants name were not mentioned at
all. After the demise of Surabhai Kanabhai Nagesh, the lands in
question delve upon his heirs i.e. respondent nos. 4.1 to 4.8 and
entry No. 1315 dated 3.3.1986 was made in favour of Surabhai
Kanabhai Nagesh. On the same day, on account of partition between
co-owners, mutation entry No. 1316 was made. The said mutation was
carried out after due notice under Section 135D of the Bombay Land
Revenue Code, 1879 and the notice was served upon Lakhman Kana i.e.
father of the contesting appellants before the Collector. In the
year 1999, to be more precise on 21.10.1999, Nagesh Harghod Lakhman
filed Revision Application No. 3 of 1999-2000 before the District
Collector, Jamnagar claiming that he has right in the lands in
question and therefore, his name also be entered in the revenue
record. On 18.9.1999, an order was passed by District Collector to
cancel and mutation entry No. 244, 334, 1315 and 1316 and the
Collector further directed that fresh entry should be made in this
regard after verifying all the heirs of Laxman Kana. Thereafter,
entry No. 1844 came to be mutated and names of heirs of Laxman Kana
were also entered along with names of heirs of Sura Kana. Against
said order, heirs of Sura Kana filed Revision Application before the
Special Secretary, Revenue Department being Revision Application No.
4 of 2000 and 9 of 2002 and as per order dated 16.7.2008, the
Revision Applications came to be allowed and entry No. 1844 was
suspended. However, while suspending the entry, it was observed in
the order that the revenue authorities cannot decide the question
of title of a property and the party should approach the Civil Court
for the same and result of the civil court would be governing the
title. The said order of Revenue Secretary dated 16.7.2008 was
subject matter of challenge by the heirs of Laxman Kana in Special
Civil Application No. 27 of 2009, which came to be dismissed vide
order dated 1.7.2009. The said order dated 1.7.2009 was not assailed
in any other proceedings like Letters Patent Appeal and therefore,
it is submitted by the petitioners that the resultant effect would
be that mutation entry Nos. 1315 and 1316 would revive.
Present
petitioners have purchased the lands in question by way of
registered sale deed dated 28.7.2009, to which, mutation entry No.
2561 was made on 21.5.2009. The concerned Mamlatdar cancelled the
said entry, against which, an appeal was preferred before the
Collector by present petitioners, which came to be dismissed by the
Collector vide order dated 3.6.2010. The petitioners assailed said
order by preferring Revision Application No. 13 of 2010, wherein,
the stay application preferred by present petitioners came to be
rejected and accordingly the petitioners have approached this Court
by preferring Special Civil Application No. 15404 of 2010, which
came to be partly allowed with direction to the concerned respondent
authorities to mutate entry on the basis of registered sale deed in
favour of the petitioners. At this stage, it is required to be noted
that heirs of Laxman Kana were not permitted to be joined as parties
by the Collector and therefore, they were not parties before the
Special Secretary, Revenue Department or before this Hon’ble Court.
The heirs of Laxman Kana preferred Letters Patent Appeal against the
order dated 13.12.2010 being Letters Patent Appeal No. 538 of 2011,
which came to be disposed of, wherein, this Hon’ble Court has
observed that just by mutation of entry, no title is created and
the entry made in favour of the petitioners was not disturbed.
In
pursuant to the order passed by this Hon’ble Court in Special Civil
Application No. 15404 of 2010, entry No. 2713 has been mutated in
favour of present petitioners. Thus, as on date, so far as land
revenue record is concerned, there exists the mutation entry No.
2713 and as per that entry, present petitioners are in occupation of
the lands in question. The petitioners approached the concerned
authority for obtaining permission called N.A. Permission under
Section 65 of the Bombay Land Revenue Code, which came to be granted
by the Competent Authority on 8.3.2011.
For
the lands in question, Regular Civil Suit No. 30 of 2000 is filed by
respondent nos. 4.1 to 4.8 against respondent nos. 5.1 to 5.5.3 for
seeking declaration and permanent injunction.
Date:
10.11.2011:
At
this stage, it was brought to the notice of the Court that Ms. Jani,
learned advocate appears only for respondent no. 5.1, 5.2.2 and
5.5.1 and therefore, technically speaking, she could not have waive
Rule on behalf of other respondents, though, they are served with
notice but have chosen not to remain present or depute any advocate.
In view of this, Ms. Jani was given time to ascertain as to whether
she represents all as it was submitted by learned Advocate appearing
for petitioners that in fact, respondent no.5.1 is the Power of
Attorney holder and has accepted notice on behalf of all the
respondents, as could be seen from the endorsement on the notice. If
the Rule is technically not waived, then, the Court may not proceed
further. Hence, the matter is kept on 15.11.2011 so as to enable Ms.
Jani to obtain instructions as to whether she is appearing for all
or not. Put up on 15.11.2011 for further orders.
(S.R.BRAHMBHATT,
J.)
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