RAJNIKANT RAMSHANKAR VYAS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The short facts of the case are that a transaction of registered sale deed was entered into, on the basis of which, the entry was mutated in the revenue record vide Entry No.5380, dated 13.1.1958. The said entry was not certified by the revenue authority on the ground that the transaction was in breach of provisions of Prevention of Fragmentation Act (hereinafter referred to as "the Fragmentation Act"). It appears that thereafter the purchaser of the land, once again, moved an application in the year 1996 for recording of entry on the basis of the registered sale deed and Entry No.11181 was recorded on 8.11.1996 in the revenue record. It appears that the petitioner raised the objection against the said entry and on 22.4.1997, the Mamalatdar initially passed the order of certifying the entry and the matter was carried in appeal vide RTS Appeal No.79/97 before the Dy.Collector and ultimately as per the order, dated 4.11.1997 the Dy.Collector remanded the matter to the Mamalatdar for reconsideration. The Mamalatdar, thereafter, as per order, dated 26.5.1999 cancelled the entry on the ground that after the entry No.5380, dated 13.5.58, possession as per revenue record is of the petitioner and it was also observed by the Mamalatdar that an objection is raised by the petitioner that the consideration is not paid and therefore the submission of the petitioner deserves to be accepted and therefor the entry No.11181 was canceled. It appears that the matter was carried in appeal before the City Dy.Collector and the City Dy.Collector merely proceeded on the basis that there is breach of provisions of Fragmentation Act and after 1958, there are also notices for transferring the interest amongst legal representatives and therefore he has dismissed the appeal. It appears that the respondent No.4 carried the matter in revision before the District Collector and the District Collector found that there is no bar of resjudicata operating against making entry on the basis of registered sale deed and if any party has any grievance, proper relief should be obtained from the competent civil court and therefore it was found by the District Collector that it is not proper to hold that the transaction is in breach of provisions of Fragmentation Act and it was also found by the District Collector that as per the registered sale deed, the possession is handed over after payment of consideration and the same is reflected from the affidavit and there is no reason to cancel the entry based on the registered sale deed and if the parties have any objection, appropriate relief should be obtained from the competent civil court and therefore ultimately the Dist.Collector has allowed the revision by certifying the Entry No.11181 in favour of respondent No.4. It appears that the petitioner preferred the revision before the State Govt against the decision of the Dist.Collector and the State Govt in its order dated 31.1.2001 found that there is no bar of resjudicata barring certifying any entry which is subsequently made and it was also found that there is no breach of provisions of Fragmentation Act by the sale in question and if either party has any grievance, proper relief could be obtained from the civil court and it was also found by the State Govt that the petitioner herein is trying to take undue benefit and therefore the intention is not with good conscience and ultimately therefore the revision of the petitioner was dismissed. It is, under these circumstances, the petitioner has approached this court by the present petition.

(2.) It may be stated that pending the petitioner, the petitioner has brought the draft amendment contending, interalia, that in the independent proceedings under the Fragmentation Act, it is found by the City Dy.Collector that the sale is in breach of the provisions of the Fragmentation Act and the sale is set aside. There is no dispute on the point that the respondent No.4 has carried the matter before the State Govt against the order under Fragmentation Act and the matter is pending before the State Govt. There is also no dispute on the point that pending the proceedings before the State Govt, below the stay application, the State Govt has passed the order of maintenance of statusquo on 11.9.1993 and rejected the stay application but it is observed in the said order that present statusquo is required to be maintained in view of the pendency of the present petition before this court.

(3.) Mr.Patel, Ld.counsel for the petitioner mainly raised two contentions, i.e. (i) the second entry for the same transaction can not be made in the revenue record and (ii) that the transaction is in breach of provisions of Fragmentation Act and now in view of the order passed by the competent authority under the other enactment, i.e. Fragmentation Act, the order passed by the Collector as well as State Govt which are impugned in this petition deserve to be quashed.