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SCA/14545/2005 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14545 of 2005
==============================================================
SHAMJI
GORDHAN DALWADI - Petitioner(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
==============================================================
Appearance
:
MR
PS CHAMPANERI for
Petitioner(s) : 1,
Mr. MR Mengdey, AGP Respondent(s) : 1 - 3,
5,
MR BD KARIA for Respondent(s) :
4,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 05/09/2005
ORAL
ORDER
In
this petition under Article 226/227 of the Constitution of India the
petitioner has challenged the legality and validity of the judgment
and order passed by the Secretary (Appeals), Revenue Department,
State of Gujarat dated 20/29th September 2004 in Revision
Application No. 29/03/High Court Remand Case No. 13/04 in dismissing
the same and confirming the order passed by the Collector,
Surendranagar dated 6.8.2003.
2. The
land in question was originally owned by one Ayubbhah Nanjibhai
Ganchi and the petitioner claims that he has purchased 10 acres and
1 guntha of land out of Survey No. 88-2 Paiki situate at Halvad by
registered Sale Deed dated 19th May 2001. It appears from
the record that the said sale transaction and the name of the
petiitoner was mutated on the Record of Rights vide Entry No. 7268
dated 20th May 2001 and the same came to be certified by
the competent authority on 22.6.2001. It appears from the record,
that respondent No.2 herein had preferred appeal before the Deputy
Collector, Dhrangadhra, being RRT Appeal No. 1/2002 challenging the
said Entry and accepting the submission on behalf of respondent No.2
that he had also purchased the land in question the Deputy Collector
cancelled the Entry No. 7268. Being aggrieved and dissatisfied with
the order passed by the Deputy Collector, Dhrangadhra, dated
28.2.2003 in Appeal No. 1/2002 the petitioner preferred Revision
Application before the Collector and the Collector, Surendranagar, by
order dated 6.8.2003 dismissed the said revision application holding
that the said Entry would be subject to decision that may be taken by
the Civil Court in the pending suit. Being aggrieved and
dissatisfied with the order passed by the Collector, Surendranagar,
dated 6.8.2003 the petitioner preferred Revision Application No.
13/2004 before the Secretary (Appeals), Revenue Department, State of
Gujarat, which came to be dismissed, against which the petitioner has
preferred the present Special Civil Application.
3. Shri
PS Champaneri, learned advocate appearing for the petitioner has
vehemently submited that the authorities below has materially erred
in cancelling the Entry No. 7268 which was in favour of the
petitioner on the basis of the Registered Sale Deed and considering
the provisions of Section 135 of the Bombay Land Revenue Code read
with Rule 108 of the Rules the authorities could not have ignored the
registered Sale Deed and could have passed the order that the said
Entry would be subject to the ultimate outcome of the civil suit
pending between the parties.
4. Shri
BD Karia, learned advocate appearing for respondent No.4 has
submitted that in fact the Collector has already passed the order on
6.8.2003 while rejecting the revision application that the Kachha
entry would be subject to the ultimate outcome of the civil suit
pending between the parties and therefore it is submitted that no
clarification is required in view of the order passed by the
Collector, Surendranagar dated 6.8.2003.
5. Heard
the learned advocates appearing on behalf of the parties. It is
required to be noted that the petitioner has purchased the land in
question by registered Sale Deed dated 19th May 2001 and
the Revenue authority could not have ignored the same. If there is
any dispute with regard to title then the parties are to be relegated
to approach the Civil Court and it can be observed that the said
Entry would be subject to ultimate outcome of the proceedings before
the Civil Court while making Entry on the basis of the Sale Deed but
the Revenue authority cannot ignore and/or refuse to make an entry on
the basis of the registered Sale Deed. As observed by the learned
Single judge of this Court in the judgment and order rendered in
Special Civil Application No. 12547 of 2004, if there is any dispute
than an additional entry can be made while making an entry on the
basis of the registered Sale Deed that the said entry would be
subject to the ultimate outcome of the civil suit pending between the
parties. It is true, that the Collector in his order dated 6.8.2003
has observed that the same would be subject to the ultimate outcome
of the civil suit. However, it appears that certification of the
entry in question came to be set aside which the Collector could not
have done. Under the circumstances, the orders passed by the
authorities below cancelling the Entry No. 7268 dated 20th
May 2001 which came to be certified on 22nd June 2001 are
hereby quashed and set aside and the Entry No. 7268 with respect to
the land in question is hereby restored. However, it is directed
that the concerned authorities shall make an additional entry along
with the said Entry that such entry will be subject to the ultimate
outcome of the suit pending between the parties being Civil Suit No.
54 of 2002 and necessary Entry will be made on the basis of the
judgment and decree that may be passed by the competent Civil Court
in Civil Suit No. 54 of 2002.
6. With
these observations and direction the present Special Civil
Application is disposed of.
[
M.R. Shah, J. ]
RMR.
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