Gujarat High Court
Parbat Veja Rathod vs Addln Secretary on 25 February, 2013
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
PARBAT VEJA RATHOD....Petitioner(s)V/SADDLN SECRETARY,REVENUE DEPARTMENT( APPEALS) C/SCA/17708/2011 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 17708 of 2011 ================================================================ PARBAT VEJA RATHOD....Petitioner(s) Versus ADDLN SECRETARY,REVENUE DEPARTMENT( APPEALS) & 3....Respondent(s) ================================================================ Appearance: MR ASIT B JOSHI, ADVOCATE for the Petitioner(s) No. 1 Ms.Asmita Patel, learned ASST.GOVERNMENT PLEADER for the Respondents ================================================================ CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 25/02/2013 ORAL ORDER
1. Heard Mr.Asit B.Joshi, learned advocate for the petitioner. He has submitted as follows:
(a) That evacuee property bearing Revenue Survey Nos.52,53 and 54, admeasuring more than 52 Acres was granted to one Hiranand Chandumal under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act,1954 by the Central Government, vide order dated 23-5-1955. The document of rights and title, that is, Sanad came to be issued by the Government of India, Ministry of Rehabilitation on 11-6-1959. It is mentioned in the Sanad that the Government of India has transferred the right, title and interest in the property, to Hiranand Chandumal. By order dated 11-6-1959, the land in question was alloted on a permanent basis to Hiranand Chandumal.
(b) That it is nowhere mentioned in the Sanad or in the allotment order, that the land is of New and Inalienable Tenure.
(c) That by Registered Sale Deed dated 20-5-1960 the father of the petitioner purchased the property in question from the original allottee, and mutation entry No.1227 came to be mutated in the revenue record.
After the death of the petitioner s father, there was an oral partition between the petitioner and his brother, and Entry No.2177 came to be mutated in the revenue record, on 2-10-1975, in the name of the petitioner. After a period of 34 years from mutation of the entry No.1227, dated 20-5-1960, and a period of 19 years after the mutation of entry No.2177, dated 2-10-1975, the Collector issued a Show-Cause notice to the petitioner, asking him to show cause why the said entries be not taken in Suo Motu revision, and cancelled.
(d) That the petitioner replied to the Show-Cause Notice. However, by the order dated 22-3-2000, the Collector, Junagadh directed that both the above entries be cancelled, on the ground that the land in question is New Tenure land, as reflected in the revenue records and a copy of the Sanad has not been produced by the petitioner.
(e) That the order of the Collector was challenged by the petitioner before the Addl. Secretary (Appeals), Revenue Department, who has confirmed the same.
(f) That both the authorities have not taken into consideration the fact that in the Sanad, there is no condition that the land is of New or Inalienable Tenure. The petitioner has produced a copy of the Sanad along with other documents, as is evident from a list of documents dated 21-6-1994, in which the Sanad is mentioned at Item No.13. However, the Collector has wrongly mentioned in his order, that the Sanad has not been produced.
(g) That there is an inordinate delay in initiation of the proceedings. The Show-Cause Notice has been issued after 34 years from the date of mutation of Entry No.1227, dated 20-5-1960, that has now been ordered to be cancelled, and after 19 years from the date of mutation of entry No.2177, dated 2-10-1975.
(h) Learned counsel for the petitioner has placed reliance upon a judgment of this court in the case of State of Gujarat v. Pravinbhai Bhailalbhai Gor, reported in 2000(3) GLR 2168, wherein it has been held that where no statutory period is prescribed for exercise of revisional powers under Section 108(6) of the Gujarat Land Revenue Rules, such powers would have to be exercised within a reasonable period of time. In the said case, this court found that the period of 9 years could not be said to be a reasonable period of time.
(i) In support of the submission regarding entry of New Tenure in the revenue records, learned counsel for the petitioner has placed reliance upon a judgment of this court in Chhotabhai Dahyabhai Thakore v. State of Gujarat, reported in 1997(3)GLR 2016, wherein this court has held that mere mention of the word New Tenure in the revenue record is not sufficient proof of inalienability and impartibility, and there must be additional and reliable proof of this fact.
(j) It is further submitted by the learned counsel for the petitioner that the partition between the brothers has been labelled as a sale and authorities have wrongly come to the conclusion that this is in breach of the condition of allotment, which is not borne out either from the Sanad, or the order of allotment.
(k) That the Village Form No.7-12 extract, as of date, mentions the land as Old Tenure land, in the name of the brother of the petitioner, therefore, there is a discrepancy in the revenue records.
2. It is, therefore, prayed that the petition be admitted and the interim relief granted earlier be confirmed.
3. Ms.Asmita Patel, learned Assistant Government Pleader has opposed the prayer for admission of the petition and confirmation of the interim relief, by submitting that the land was originally allotted to Hiranand Chandumal as New Tenure land, and entry No.892 has been made in the revenue record, which shows it as New Tenure land. This entry has never been challenged by the original grantee or the petitioner and has attained finality. That the land was granted to the father of the petitioner, without prior permission of the competent authority, therefore,the impugned orders do not suffer from any legal infirmity.
3.1 Learned Assistant Government Pleader has placed reliance upon a judgment of the Supreme Court in the case of Pune Municipal Corporation v. State of Maharashtra, reported in (2007) 5 SCC 211, to emphasize that where no period of revision is prescribed in the Statute, the State Government is empowered to exercise revisional powers within a reasonable period of time. What can be considered a reasonable time, depends upon the facts and circumstances of the case.
3.2 It is further submitted that though, the Sanad is mentioned in the list of documents submitted by the petitioner to the Collector, it was not found on the record of the case.
4. I have heard learned counsel for the petitioner and the learned Assistant Government Pleader for the respondents, perused the averments made in the petition, contents of the impugned order and other documents on record.
5. The petitioner has produced a copy of the Sanad issued by the Government of India, Ministry of Rehabilitation, dated 11-6-1959, at Annexure B to the petition. From a perusal of this document, it is clear that there is no mention that the land is of New Tenure or of an inalienable or impartible nature. The order of allotment dated 12-6-1959, at running page 21 of the paper book, also does not mention such a condition. In fact, in the Sanad it is mentioned that the Central Government has transferred its right, title and interest in the land to Hiranand Chandumal.
6. The father of the petitioner has purchased the property from Hiranand Chandumal, by Registered Sale Deed dated 20-5-1960. Thereafter, the land has been partitioned between the petitioner and his brother, upon the death of their father, which has been termed as a sale transaction by the authorities. There is no denial to the fact that proceedings have been initiated after 34 years after the mutation of revenue entry No.1227, on 20-5-1960, and 19 years after the mutation of entry No.2177, on 2-10-1975.
7. In State of Gujarat v. Pravinbhai Bhailalbhai Gor (Supra), this court has held that the period of 9 years cannot be said to be a reasonable period of time. In Pune Municipal Corporation v. State of Maharashtra (Supra), the Supreme Court has held that when the Statute does not fix a period of limitation within which revisional powers should be exercised, the said powers should be exercised within a reasonable period of time, and what would be a reasonable period of time would depend upon the facts and circumstances of the case.
8. One of the issues that fall for decision is whether the period of 34 years and 19 years, can be said to be a reasonable period of time.
9. In Chhotabhai Dahyabhai Thakore v. State of Gujarat (Supra), it has been held that mere mention of the word New Tenure in the revenue record is not sufficient proof of the inalienable and impartible nature of the land and there must be additional and reliable proof of this fact. This is the second issue that falls for determination.
10. On both counts, the learned advocate for the petitioner has succeeded in making out a good prima facie case, warranting admission of the petition.
Hence, issue Rule, returnable on 11-3-2013.
The status quo order granted earlier, is confirmed, and shall continue till the final decision of the petition.
(SMT. ABHILASHA KUMARI, J.) ARG Page 9 of 9