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SCA/1976/2001 5/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1976 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
===================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
===================================
VASANTLAL
NAROTTAMDAS PACHCHIGAR - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
===================================
Appearance :
MR
ASPI M KAPADIA for Petitioner(s) : 1,
MR. MENGDEY, AGP for
Respondent(s) : 1 - 2.
RULE SERVED for Respondent(s) : 3,
MS KJ
BRAHMBHATT for Respondent(s) : 4,
===================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 08/02/2010
ORAL
JUDGMENT
1. By
way of this petition under Article 226 of the Constitution of India,
the petitioner father of the respondent No. 4 has prayed for an
appropriate writ, direction and order quashing and setting aside the
impugned order dated 11.4.2000 passed by the respondent No. 3 and the
order dated 20.12.2000 passed by the respondent no. 2 respectively.
2. The
dispute is with respect to the mutation entry with respect to the
property bearing City Survey Nos. 699, 700 and 701 situated at Surat.
It is also required to be noted that the dispute is between the
father and son. That the respondent No. 4 herein- son submitted
application before the City Survey Superintendent, Surat to enter his
name in the city survey record with respect to the aforesaid
properties as joint owner/co-owner vide application dated 25.6.1996.
It appears that it was the case on behalf of the respondent No. 4
that all the aforesaid properties is ancestral properties, more
particularly, property bearing City Survey No. 700 and 701 and so far
as the property bearing City Survey No. 699 is concerned, it has been
purchased by the petitioner herein- his father from the funds/
amounts out of joint family business. That the City Survey
Superintendent, Surat vide reply dated 4.7.1996 informed the
respondent No. 4 herein that only on producing the registered
document further proceedings can be initiated to enter his name as
joint / co-owner and accordingly filed the aforesaid application.
Being aggrieved and dissatisfied with the aforesaid communication of
the City Survey Superintendent, Surat dated 4.7.1996, respondent no.
4 herein preferred CTS Appeal No. 110 of 1996 and Deputy Collector,
Choryasi Prant, Surat by an order dated 11.4.2000 allowed the said
appeal directing to enter the name of the respondent no. 4 as well as
widow of another son of the petitioner and his sons as co-owners in
the City Survey Record with respect to the aforesaid properties by
holding that the said properties are ancestral properties. Being
aggrieved and dissatisfied with the order passed by the Deputy
Collector, Choryasi Prant dated 11/4/2000 passed in CTS Appeal No.
110 of 1996, the petitioner preferred a further appeal being CTS
Appeal No. 14 of 2000 before the Collector Surat and the Collector,
Surat by impugned order dated 20.12.2000 dismissed the said appeal
confirming the order passed by the Deputy Collector, Surat dated
11/4/2000. Being aggrieved and dissatisfied with the aforesaid orders
passed by both the authorities below, the petitioner has preferred
the present Special Civil Application under Article 226 of the
Constitution of India and the said application came to be admitted by
this Court as far as back on 19.3.2001 and the learned Single Judge
also granted ad-interim relief staying implementation, operation of
the order passed by both the authorities below and the said
ad-interim relief has came to be confirmed by this Court on 1.8.2001
and the said interim relief has been continued till date.
3. Shri
Kapadia, learned advocate for the petitioner has vehemently submitted
that the orders passed by both the authorities below directing to
enter the name of the respondent no. 4 and others by further holding
that the property in question are ancestral properties is absolutely
illegal and without jurisdiction. It is submitted that as such the
authorities dealing with the dispute with respect to the mutation
entry in the revenue record and / or in the city survey record is not
required to enter into the disputed question of title and/ or
adjudicate upon the rights of the respective parties in the property
in question. It is submitted that if there is any dispute between the
parties with respect to rights of the respective parties in the
property, it is the only Civil Court who has got the jurisdiction to
adjudicate and decide the same. It is submitted that in the present
case the said exercise has been done by the Deputy Collector while
considering the dispute with respect to entry in the city survey
record which is not permissible at all and therefore, it is submitted
that impugned order passed by the Deputy Collector, Choryasi Prant,
Surat confirmed by the Deputy Collector, Surat is without
jurisdiction and deserves to be quashed and set aside. Shri Kapadia,
learned advocate for the has also tried to make submission on merits
in support of his case on behalf of the petitioner that the
properties in question, more particularly property being city survey
no. 699 is self acquired property and so far as other properties are
concerned, the names of the respondent no. 4 and other as co-owners
during the lifetime of the petitioner cannot be entered into and/ or
the respondent no. 4 and others have no right. However, for the
reasons stated hereinafter this Court is not inclined to enter into
the dispute with respect to the rights of the respective parties and
/ or with respect to the status of the property in question whether
they are ancestral properties and/ or whether respective parties have
right title or interest in the properties in question or not.
4. Petition
is opposed by Ms. Brahmbhatt, learned advocate for the respondent
no.4. A preliminary objection is raised with respect to
maintainability of the present petition straightway challenging the
order passed by the Collector instead of preferring Revision
Application under Section 211 of the Bombay Land Revenue Code before
the Secretary (Appeals), State of Gujarat. Learned advocate for the
respondent no. 4 has also tried to make submission on merits in
support of her submission that all the properties in question are
ancestral properties, however, as the learned advocate for the
petitioner is not permitted to make submission on merits with respect
to rights of the respective parties and the status of the property in
question, for the reasons stated above and for the reasons stated
hereinafter this Court does not propose to enter into the larger
question on merits with respect to right, title or interest of the
respective parties and the status of the property.
5. Having
heard the learned advocates for the respective parties and
considering the nature of controversy, it appears that the dispute is
with respect to the mutation entry / entry in the property card.
There are rival claim by the respective parties with respect to the
status of the properties in question and according to the
petitioner-father the properties in question are not ancestral
property and they are self acquired property and / or during the
lifetime with respect to some of the properties respondent no. 4 and
others have no right, title or interest in the land in question.
However, on the other hand, it is the case on behalf of the
respondent no. 4 that the properties in question are ancestral
property and, therefore, their names are required to be entered into
the city survey record. As held by the Hon’ble Apex Court as well as
this Court in catena of decisions entry in the revenue record and/ or
in the city survey record does not confer any right, title or
interest in favour of the persons whose name is entered into the
record, solely on that basis and that the entry in the revenue record
/ record is for fiscal purpose for recovering the revenue / taxes.
Any dispute with respect to right, title or interest in the land /
property and/ or status of the properties whether it is ancestral
property or self acquired property, it is to be resolved only through
the Civil Court by filing substantive suit and getting the rights
crystallized and necessary entry in the record can be made on the
basis of the decree that may be passed by the Civil Court. However,
the authorities in the proceedings with respect to mutation entry has
no jurisdiction to adjudicate and decide the rights between the
parties. Under the circumstances, impugned orders passed by both the
authorities below holding and declaring the property bearing survey
nos. 699, 700 and 701 as ancestral properties, are without
jurisdiction. If the petitioner or the respondent no. 4 has any
dispute with respect to the status of the properties and/ or right
title or interest in the property in question they are required to
approach the Civil Court for establishing their rights and necessary
entries can be made in the city survey record on the basis of the
decree that may be passed.
6. With
respect to the objection raised by Ms. Brahmbhatt, learned advocate
for the respondent no.4 with respect to maintainability of present
petition straightway challenging the order passed by the Collector
instead of preferring revision application before the Revisional
Authority i.e. Secretary (Appeal) Revenue Department, State of
Gujarat, it is to be noted that present petition is of the year 2001
and which came to be entertained and admitted by this Court and this
Court at the relevant time and therefore, after a period of almost 9
years, petition cannot be dismissed on the aforesaid ground by
relegating the petitioner to approach the revisional authority.
7. In
view of the above and for the reasons stated above, petition
succeeds. The impugned order dated 11.4.2000 passed by the respondent
No. 3 and the order dated 20.12.2000 passed by the respondent no. 2
are hereby quashed and set aside. However, it is observed that solely
on the basis of the name of the petitioner in the city survey record
it will not be open for the petitioner to contend that the respondent
No. 4 and other persons have no right, title or interest in the land
in question and / or same are not ancestral properties and / or same
is self acquired property, solely on the basis of said entry.
Similarly, by not entering the names of the respondent no. 4 and
others it also may not be construed that they have no right, title or
interest in the property in question. With respect to the dispute
between the parties with respect to the status of the properties in
question and right, title and interest of the respective parties
parties in the property in question, parties are relegated to
approach the Civil Court by way of substantive suit and it is
observed that on the basis of the decision that may be taken by the
Civil Court, necessary entry shall be made in the city survey record.
Rule is made absolute to the aforesaid extent. No costs.
(M.R.SHAH,
J.)
kaushik
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