SCA/2865/2008 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2865 of 2008 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 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 ? ========================================================= RAMNIKBHAI MAVJIBHAI & 5 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MS MARIA DALAL for MR YATIN SONI for Petitioner(s) : 1 - 6. MR DASHRATH CHAUHAN ASSISTANT GOVERNMENT PLEADER for Respondents:1-2 ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 15/02/2008 ORAL JUDGMENT 1. RULE. Mr. Dashrath Chauhan, learned Assistant Government Pleader, waives service of rule on behalf of the respondents. In the facts and circumstances of the SCA/2865/2008 2/13 JUDGMENT case and with the consent of the learned counsel for the parties, the petition is being heard and finally decided today. 2. This petition, under Article 226 of the Constitution of India, has been filed with a prayer to quash and set aside the order dated 31st December, 2007, passed by the respondent no. 2, whereby the said respondent has refused to make the mutation entries in the revenue records for the land purchased by the petitioners. 3. Briefly stated, the facts of the case, as emerging from a perusal of the averments made in the petition as well as the documents annexed thereto, are that the petitioners had purchased land bearing Plot No. 17 of Rajkot City Survey No. 2910 Paiki-Part, admeasuring 366.89 sq., mtrs., from Khedut Solvex Pvt. Ltd., vide registered Sale Deed No. 8778 dated 7th November, 2007 for consideration of Rs.72,00,000/-, a copy of which is annexed as Annexure “E” to the petition. The development plan in respect of the land purchased by the petitioners was submitted in the Office of the Rajkot Municipal Corporation and was approved by the Assistant Town Planner on 18th January, 2008. It is averred in the SCA/2865/2008 3/13 JUDGMENT petition that after purchasing the said Plot, the petitioners had made an application dated 23rd November, 2007 to the City Survey Superintendent, Rajkot, respondent no. 2 herein, requesting him to make necessary entries in respect of registered Sale Deed No. 8788 of 2007 and registered Sale Deed No. 4236 of 2006. The said application has been rejected by the respondent no. 2 vide order dated 31st December, 2007. 4. It further transpires from the averments made in the petition that one Bavabhai Karshanbhai Patel had filed a Special Civil Suit No. 287 of 2002 in the Court of learned Civil Judge (Senior Division), Rajkot against the Rajkot Municipal Corporation in respect of the land in question. In the said Suit, the plaintiff had filed an application, which is at Exh. 5, for the grant of interim injunction, which was rejected vide order dated 30th November, 2005. The plaintiff, i.e., Bavabhai Karshanbhai Patel had thereafter, preferred an Appeal from Order No. 407 of 2004 in the High Court, against the aforesaid order. The Appeal from Order was disposed of by this Court vide order dated 28th December, 2004, the relevant extract of which is reproduced hereinbelow. “(i) Pursuant to advertisement dated 25th November,2004, the Municipal Commissioner, Rajkot Municipal Corporation held a public SCA/2865/2008 4/13 JUDGMENT auction for Plot Nos.9-C, 10, 11-B, 11-C, 12, 17 and 15 for which the purchasers have already paid 1/4 of the amount payable to the Corporation. The aforesaid plots approximately admeasures 2,100 sq. mtrs. (ii) Save and except, sale already effected by the Corporation in respect of the above mentioned plots approximately admeasuring 2,100 sq. mtrs. only, no further sale or disposal of the properties advertised, will be effected till the final decision of the suit. (iii) The impugned order dated 30th November, 2004, passed by the learned 2nd Joint Civil Judge (S.D.), Rajkot, below Exh.5-Application in Special Civil Suit No.287 of 2002 does not survive. (iv) The learned Judge of the Trial Court is directed to give priority to the hearing of the aforesaid Special Civil Suit No.287 of 2002 and decide the same as expeditiously as possible, preferably by 30th April, 2005, but, not later than 15th May, 2005. The aforesaid direction is issued on an assurance given by the learned Advocates for the respective parties that their counterparts will extend full cooperation to the learned Judge to hear and decide the suit in the aforesaid time frame and that they will not be seeking any avoidable adjournment. 2. In view of the disposal of the Appeal From Order, Civil Application No.9784 of 2004 does not survive and the same is disposed of accordingly.” 5. However, the Special Civil Suit filed by Bavabhai Karshanbhai Patel against the Rajkot Municipal Corporation, is still pending. It also transpires from a reading of the averments made in the petition that thereafter, the Rajkot Municipal Corporation, by its General Board Resolution No. 23 dated 20th April, 2005, SCA/2865/2008 5/13 JUDGMENT disposed of the Plots of land by public auction to the highest bidder on certain terms and conditions. In the auction that took place pursuant to the Resolution passed by the General Board of the Corporation, one Khedut Solvex Pvt. Ltd., purchased Plot No. 17 of the said land for consideration of Rs.66,40,709/- vide registered Sale Deed no. 4236 of 2006 dated 23rd June, 2006. Thereafter, the petitioners purchased the land in question from Khedut Solvex Pvt. Ltd., by registered Sale Deed No. 8788 of 2007 dated 7th November, 2007 for consideration of Rs.72,00,000/-. After purchasing the land in question, the petitioners made an application dated 23rd November, 2007 to the City Survey Superintendent - respondent no. 2 herein, to make necessary mutation entries, pursuant to the above mentioned Sale Deeds. The said application was rejected by the respondent no. 2, vide order dated 31st December, 2007, giving rise to the present petition. 6. Ms. Maria Dalal, learned counsel for the petitioners, has submitted that the application of the petitioners has been rejected on the ground that a Civil Suit is pending between Bavabhai Karshanbhai Patel and Rajkot Municipal Corporation and respondent no. 2 has refused to make the necessary mutation entries in respect of the Sale Deeds, viz. registered Sale Deeds Nos. 4236 SCA/2865/2008 6/13 JUDGMENT 2006 and 8788 of 2007 solely on the ground of pendency of the Civil Suit. It has been submitted by the learned counsel for the petitioners that under the provisions of Section 135D of the Bombay Land Revenue Code [the “Code” for short], the respondents are bound to effect the necessary mutation entries in respect of the land purchased by a registered Sale Deed and, therefore, the rejection of the application of the petitioners, by the impugned order, is unjustified and contrary to the provisions of law. 7. Ms. Dalal has further submitted that the petitioners are bona fide purchasers for consideration and the predecessor-in-title of the petitioners had also purchased the land from the Rajkot Municipal Corporation for consideration, by way of a registered Sale Deed. Moreover, neither the petitioners nor their predecessor- in-title, are parties to the Civil Suit and, therefore, there is no reason why the mutation entries in respect of the Sale Deeds regarding the land in question cannot be effected in the revenue records. In support of these submissions, the learned counsel for the petitioners has placed reliance on the following judgments. (1) Nathubhai Meraman Darji v. Special Secretary (Appeals) & Ors., reported in 1996 (3) GCD 691 SCA/2865/2008 7/13 JUDGMENT (Guj). (2) Jhaverbhai Savjibhai Patel Through P.O.A Holder Ashok J. Patel v. Kachaben Nathubhai Patel & Ors., reported in 2005 (3)GLR pg.2233. 8. Mr. Dashrath Chauhan, learned Assistant Government Pleader, has, on the other hand, supported the impugned order and has opposed the prayers made in the petition. 9. I have heard Ms. Maria Dalal, learned advocate appearing for Mr. Yatin Soni, learned counsel for the petitioners and Mr. Dashrath Chauhan, learned Assistant Government Pleader, and have gone through the averments made in the petition as well as the documents annexed thereto. The procedure for making and certifying the mutation entries in the revenue records has been laid down in Section 135D of the Code. 10. The petitioners have purchased the land in question by way of a registered Sale Deed. The procedure under Section 135D of the Code is not required to be followed in respect of a transaction made by a registered Sale Deed. In this regard, the observations of this Court in the case of Nathubhai Meraman Darji v. Special Secretary (Appeals) & Ors. (supra), are pertinent and are SCA/2865/2008 8/13 JUDGMENT reproduced hereinbelow. “It is an admitted position on record that the petitioner purchased the disputed land from the deceased by means of a registered sale deed. He was therefore not required to report that transaction to the Village Accountant. The Village Accountant was required to take note of that transaction on account of its registration according to the Indian Registration Act, 1908. In that case, the question of following the procedure of Section 135-D of the Code would not arise when a transaction is represented by a registered document, its suo motu cognizance is required to be taken by the Village Accountant for the purpose of its mutation in the concerned revenue record. If that transaction is disputed, the disputing party will have to approach the competent civil Court for annulling or avoiding such transaction as provided in Section 31 of the Specific Relief Act, 1963. It would not be open to him to dispute the validity of the transaction in what is popularly known as the RTS proceedings. I think respondent no. 3 was not justified in setting aside the entry at Annexure-A to this petition on the ground that the required notice under Section 135-D of the Code was not served to the deceased. I am of the opinion that the deceased was not required to be served with the notice under the statutory provision.” 11. In the present case, the transaction of sale by way of a registered Sale Deed between the Khedut Solvex Pvt. Ltd., and Rajkot Municipal Corporation is not the subject matter of dispute in the Civil proceedings. Similarly, there is no dispute regarding the transaction of sale by a registered Sale Deed between Khedut Solvex Pvt. Ltd., and the petitioners. Therefore, the procedure under Section 135D of the Code is not required to be SCA/2865/2008 9/13 JUDGMENT followed in respect of the abovementioned two registered Sale Deeds, as held in Nathubhai Meraman Darji v. Special Secretary (Appeals) & Ors. (supra). It therefore follows that there remains no cogent reason for rejecting the application of the petitioners for making the necessary mutation entries in the revenue records pursuant to the two registered Sale Deeds. When the Sale Deed has been duly registered under the provisions of the Indian Registration Act, 1908, the necessary entry regarding the transaction which has been effected by it, should be effected in the relevant revenue records. A registered Sale Deed executed by the holder of the land, confers a right on the purchaser thereof, and the necessary mutation entry in in that regard should be made in the revenue records, if there is no other dispute regarding the same. In the present case, there is no dispute regarding the two registered Sale Deeds and there is no justification why the mutation entries regarding them cannot be effected in the revenue records. 12. It is a settled position of law that mutation entries effected in the revenue records do not confer title but are effected for fiscal purposes. In the present case, the land in question has been transferred by registered Sale Deed, by paying valuable SCA/2865/2008 10/13 JUDGMENT consideration. The pendency of a civil dispute between the Bavabhai Karshanbhai Patel and Rajkot Municipal Corporation has no relevance since neither the predecessor-in-title of the petitioners, nor the petitioners themselves are parties to the Civil Suit and, as such, are not concerned with it. The mere pendency of the Civil Suit between third parties, wherein the subject land is not in dispute cannot be a valid ground for refusal in making the mutation entries in respect of the land in question. 13. In the case of Jhaverbhai Savjibhai Patel Through P.O.A Holder Ashok J. Patel v. Kachaben Nathubhai Patel & Ors.(supra), this Court has held as under :- “7. It appears that if a registered sale deed is executed by the holder of the land, it confers the right pertaining to the land in question in favour of the purchaser of the land, and, therefore, the rights pertaining to the land in question in normal circumstances can be said to have been acquired over the land in question for which recording is required to be made in the revenue record. It is also well settled that the revenue entries are having value only for fiscal purpose and more particularly for the purpose of recovery of revenue and it neither confers any right or title over the property, nor does it take away the right or title in the property which otherwise cannot be available under the law.” 14. There is no dispute regarding the fact that the SCA/2865/2008 11/13 JUDGMENT petitioners have purchased the land in question from Khedut Solvex Pvt. Ltd., vide registered Sale Deed. The said land had been purchased by Khedut Solvex Pvt. Ltd., who is the predecessor-in-title of the petitioners, from Rajkot Municipal Corporation. It is relevant to note that the land has been purchased by Khedut Solvex Pvt. Ltd., from the Rajkot Municipal Corporation in a public auction which has been approved by this Court, as is evident from the order dated 28th December, 2004, which has been reproduced earlier. The land in question has, in turn, been purchased by the petitioners and both transactions have been effected through duly registered Sale Deeds. It is also not in dispute that no civil proceedings have been instituted or are pending, for Plot no. 17, which is the plot of land purchased by the petitioners. As such, the mere pendency of the civil suit is not a valid ground not to effect mutation entries in respect of the registered Sale Deeds, regarding which there is no dispute. 15. It is not the case of the respondents that the registered Sale Deeds regarding which entries are sought to be made are either disputed or contrary to any provisions of law. The land in question has been purchased by the petitioners upon payment of valuable SCA/2865/2008 12/13 JUDGMENT consideration. As such, a right has been conferred upon the petitioners in respect of the land purchased by them by registered Sale Deed, since there is no other prohibition regarding the transaction. This position ought to be reflected in the revenue records by effecting the appropriate mutation entries so that any person acting upon the revenue records gets a correct picture of the factual position and is not misled due to absence of the necessary mutation entries in the revenue records. 16. As a result of the aforesaid discussion, the order dated 31st December, 2007 is quashed and set aside. The respondent no. 2 is directed to make the necessary mutation entries as per the application of the petitioners dated 23rd November, 2007 in the revenue records. In case the respondent no. 2 finds it necessary, while making mutation entries, an endorsement can be made indicating that a Civil Suit is pending between Bavabhai Karshanbhai Patel and the Rajkot Municipal Corporation. If such an endorsement is made, it may also be mentioned therein that the petitioners are not parties to the Civil Suit. 17. Accordingly, the petition is allowed. Rule is made absolute to the aforesaid extent. There shall be no SCA/2865/2008 13/13 JUDGMENT orders as to costs. Direct Service is permitted. [Smt. Abhilasha Kumari, J.] /phalguni/