Bhayabhai vs State

1. By way of this petition under Article 226 and 227 of the Constitution of India the petitioner has prayed for an appropriate Writ, direction and/or order quashing and setting aside impugned order dated 17.03.2009 passed by the Revisional Authority State Government Secretary (Appeals), Revenue Department, State of Gujarat in Revision Application No.23 of 2005 in dismissing the same and confirming the order dated 21.09.2005 passed by the Collector, Amerli in Case No.178 of 2005 by which Collector, Amerli in exercise of powers under Rule 108(6) of Gujarat Land Revenue Rules (herein after referred to as 'the Rules' for short) had set aside revenue mutation entry nos. 754 and 782 with respect to land in question.

2. It appears from the proceedings that respondent no.3 was the owner of the land in question and on the said land respondent no.3 took loan from State Bank of India, Bhader Branch and there was charge of State Bank of India on the aforesaid land in question and that charge was registered and mutated in the revenue record by way of mutation entry no.621. It appears that respondent no.4 claims to have purchased land in question from respondent no.3 by registered sale deed and name of respondent no.4 Madhubhai Virjibhai Savaliya was mutated in the revenue record vide entry no.782. That both the aforesaid revenue entries being mutation entry no.754 and 782 in favour of respondent no.4 and petitioner respectively came to be taken under suo-moto revision by Collector, Amerli in exercise of powers under Rule 108(6) of the Rules and by order dated 21.09.2005 Collector, Amerli set aside both the revenue entries which were in favour of respondent no.4 and petitioner respectively by observing and holding that as there was charge of State Bank of India on the land in question of which there was mutation entry no.621, transaction in favour of respondent no.4 and petitioner are invalid. Being aggrieved with the order dated 21.05.2009 passed by the Collector, Amerli passed in Case No.178 of 2005 in cancelling revenue entry no.754 and 782, the petitioner preferred Revision Application No.23 of 2005 before the State Government Secretary (Appeals), Revenue Department, State of Gujarat and by impugned order Revisional Authority dismissed the said Revision Application and confirmed the order dated 21.05.2009 passed by the Collector, Amerli. Hence, petitioner has preferred present Special Civil Application under Article 226 and 227 of the Constitution of India.

3. Mr.Muchhala, learned Advocate appearing for the petitioner has vehemently submitted that Collector in exercise of powers under Rule 108(6) of the Rules could not have declared transaction / sale deed in favour of petitioner invalid. Therefore, it is submitted that order passed by the Collector, Amerli quashing and setting aside entry no.782 which was in favour of the petitioner on the basis of registered sale deed on the ground that transfer / transaction / sale deed in favour of the petitioner is invalid in view of charge of State Bank of India over the land in question, is absolutely without jurisdiction and deserves to be quashed and set aside.

4. Mr.Apurava Dave, learned Advocate appearing on behalf of the respondent State of Bank has submitted that as on today approximately an amount of Rs.35,000/- (Rupees Thirty Five Thousand only) is due and payable and there is charge of State Bank of India over the land in question and State Bank of India can recover said amount even from the land in question for which there was charge of State Bank of India. It is submitted that by subsequent transaction, rights of State Bank of India, Bhader Branch to recover loan amount from the land in question cannot be taken away.

5. Mr.Nilesh Jani, learned Advocate appearing for original owner respondent no.3 has submitted that as such petitioner was aware of charge of State Bank of India over the land in question. It is submitted that even transaction in favour of respondent no.4 from whom petitioner purchased land in question is absolutely illegal and there was money lending transaction and respondent no.4 got sale deed in his favour by administrating threats and respondent no.3 was compelled to sign document. Therefore, it is submitted that in the facts and circumstances of the case, Collector, Amereli has rightly set aside mutation entry no.754 and 782 which was in favour of respondent no.4 and petitioner respectively, which is rightly confirmed by the Revisional Authority and is not required to be interfered by this Court in exercise of powers under Article 226 and 227 of the Constitution of India.

6. Heard the learned Advocates appearing on behalf of the respective parties at length.

7. It cannot be disputed that Collector, Amerli was exercising powers under Rule 108(6) of the Rules and mutation entry no.754 and 782 in favour of respondent no.4 and petitioner respectively on the basis of respective registered sale deed were taken under suo-moto revision by the Collector, Amerli and same came to be set aside by the Collector, Amerli solely on the ground that as there was charge of State Bank of India on the land in question on which there was mutation entry no.621, transaction in favour of respondent no.4 and further transaction in favour of petitioner is invalid, said order is absolutely without jurisdiction. Said order could not have been passed by the Collector, Amerli in exercise of powers under Rule 108(6) of the Rules. While considering dispute with respect to mutation entry, Collector has no jurisdiction to decide the disputed question of title more particularly legality and validity of sale. Under the circumstances, impugned order passed by the Revisional Authority in dismissing Revision Application confirming order passed by the Collector, Amerli cannot be sustained and both the aforesaid orders deserves to be quashed and set aside.

8. At the same time it is to be noted that there was entry no. 621 in favour of State Bank of India, Bhader Branch and charge of said State Bank of India on the land in question was already mutated in the revenue record and merely on the basis entry in favour of subsequent purchaser and merely on the basis of subsequent transaction, right of State Bank of India to recover loan amount from the land in question cannot be taken away and it will be open for State Bank of India, Bhader Branch to recover loan amount from disputed land in question on the basis of charge created in favour of State Bank of India, Bhader Branch and entry in favour of State Bank of India with respect to charge of State Bank of India is required to be continued along with mutation entry in favour of petitioner on the basis of registered sale deed executed by respondent no.4.

9. In view of above and for the reasons stated above, petition succeeds. Impugned order dated 17.03.2009 passed by the Revisional Authority State Government Secretary (Appeals), Revenue Department, State of Gujarat in Revision Application No.23 of 2005 in dismissing the same and confirming the order dated 21.09.2005 passed by the Collector, Amerli in Case No.178 of 2005 by which Collector, Amerli and order dated 21.09.2005 passed by the Collector, Amerli in Case No.178 of 2005 by which Collector, Amerli are hereby quashed and set aside and mutation entry no.782 in favour of petitioner on the basis of registered sale deed executed by respondent no.4 is hereby directed to be restored and it is further ordered that entry in favour of State Bank of India, Bhader Branch registering charge of State Bank of India on the land in question is also directed to be continued and it will be open for the State Bank of India to recover loan amount from the land in question as charge of State Bank of India on the land in question still continues and petitioner and respondent no.4 are subsequent purchasers of the land in question. So far as dispute raised by respondent no.3 land owner is concerned, if respondent no.3 is aggrieved by transaction in favour of respondent no.4, it will be open for him to initiate proceedings before the Civil Court, if permissible under law now. Rule is made absolute to the aforesaid extent. No costs.

[M.R.Shah,J.] satish Top