Gujarat High Court
Shivcharan Lalchand Bhatiya vs Sejal K Mevada on 5 April, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/12250/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12250 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SHIVCHARAN LALCHAND BHATIYA
Versus
SEJAL K MEVADA
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Appearance:
MR NV GANDHI(1693) for the PETITIONER(s) No. 1
MS. NISHA THAKORE, ASST. GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 3
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,4,5
NOTICE UNSERVED(8) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/04/2018
CAV JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs;
"(A) Your Lordships may be pleased to issue appropriate Page 1 of 34 C/SCA/12250/2017 CAV JUDGMENT writ, order or direction and be pleased to declare and hold that, impugned show cause notice dtd. 31.5.2017 of Ganot/Revision/Case No.4/2017 produced at Annexure-E to this petition, issued by the Ld. Dy. Collector (Land Reforms & Appeals), Ahmedabad resp. no.4 herein in exercise of suo motu revisional powers u/s. 76A of Tenancy Act in relation to the subjected land bearing S/B. no.708/1 admeasuring 0-44-19 H-ARE-Sq. Mtrs, situated Mouje/Village: Makarba, Ta. City & District:
Ahmedabad, is illegal, contrary to the law and be further please to quash and set aside the same; AND (B) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the further proceedings of Ganot/Revision/Case no.4/2017 pending before the Ld. Dy. Collector (Land Reforms & Appeals), Ahmedabad;AND (C ) Your Lordships may be pleased to grant ad-interim relief in terms of para-B;AND (D) Your Lordships be pleased to pass any other and further order as may be deemed fit in favour of the petitioner."
2. The facts giving rise to this writ application may be summarized as under;
2.1 The subject land bearing Survey No. 708/1, admeasuring 0-44-19H-ARE-square meters, situated at Mouje/Village Makarba, Taluka City & District: Ahmedabad was owned by one Gogaji Mohanji, i.e., the respondent No.2 herein. Gogaji Mohanji transferred the subject land in favour of the writ applicant and others vide the registered sale deed dated 20th May, 1982. The sale deed was registered before the Sub- Registrar, Ahmedabad at Serial No.749.
2.2 The City Mamlatdar & ALT, Ahmedabad found the said sale transaction to be in breach of section 63 of the Tenancy Page 2 of 34 C/SCA/12250/2017 CAV JUDGMENT Act, and in such circumstances, thought fit to exercise his suo motu powers under section 84-C of the Tenancy Act in that regard. The proceedings came to be registered as Case No. Tenancy-84C/295/84. The proceedings were initiated against the sellers and the purchasers including the writ applicant herein, and by an order dated 3rd June, 1988 forfeited the subject land into the State Government by holding that the sale transaction was in breach of the provisions of section 63 of the Tenancy Act.
2.3 Being dissatisfied with the order, referred to above, the writ applicant and others preferred the Tenancy Appeal No.210 of 1988 under section 74 of the Tenancy Act before the Deputy Collector (Land Reforms) Appeals, Ahmedabad. The writ applicant and others also preferred a stay application and prayed for an interim order pending the appeal. The Deputy Collector (Land Reforms) Appeals, Ahmedabad by his order dated 28th September, 1988 granted stay and, thereafter, by an order dated 26th October, 1989 allowed the appeal and quashed and set aside the order passed by the City Mamlatdar & A.L.T. 2.4 The order of the Deputy Collector (Land Reforms & Appeals), Ahmedabad dated 3rd June, 1988 attained finality in the absence of any challenge thereof before any higher forum.
2.5 Almost after a period of 19 years from the order dated 3rd June, 1988 passed by the Deputy Collector, referred to above, the respondent No.1, an absolute stranger so far as the subject land is concerned, preferred an application dated 4th December, 2009 before the Mamlatdar & ALT, Daskroi, Page 3 of 34 C/SCA/12250/2017 CAV JUDGMENT Ahmedabad with a prayer that suo motu powers under section 84-C of the Tenancy Act be exercised and the order dated 3 rd June, 1988 be quashed. The Mamlatdar & ALT, Daskroi, Ahmedabad took cognizance upon such application filed by the respondent No.1 herein and initiated proceedings which came to be registered as the Ganot Case No.518 of 2009 and issued notice to the writ applicant and others. The Mamlatdar & ALT, Daskroi, Ahmedabad, after examining the record of the case, by his order dated 6th May, 2010 dropped the proceedings holding that he had no powers and jurisdiction to initiate proceedings suo motu under section 84-C of the Tenancy Act in view of the fact that the order was passed by the Deputy Collector (Land Reforms) Appeals, Ahmedabad.
2.6 The Deputy Collector (Land Reforms & Appeals), Ahmedabad, almost after seven years from the order dated 6th May, 2010, and 29 years from the date of the order dated 26 th October, 1989, thought fit to exercise his suo motu revisional jurisdiction under section 76-A of the Tenancy Act with regard to the legality and validity of the order dated 6th May, 2010 passed by the Mamlatdar & ALT, Daskroi, Ahmedabad. The Deputy Collector issued a show-cause notice in this regard dated 31st May, 2017, Annexure-E to this writ application, page-37. It is this show-cause notice which is the subject matter of challenge in the present writ application.
3. Mr. Gandhi, the learned counsel appearing for the writ applicant submitted that the issue of show-cause notice dated 31st May, 2017, after these many years, is without jurisdiction. He would submit that no record can be called for by the Collector after the expiry of one year from the date of the Page 4 of 34 C/SCA/12250/2017 CAV JUDGMENT order passed by the Mamlatdar in exercise of his powers under section 76-A of the Act for the purpose of satisfying himself as to the legality or propriety of such order or to the regularity of the proceedings of the Mamlatdar. Mr. Gandhi submitted that the issue raised in this writ application is squarely covered by two decisions of this Court; one in the case of Arunbhai Laljibhai Gadhiya vs. State of Gujarat, Special Civil Application No.12640 of 2013, decided on 22nd June, 2016 and another in the case of Shah Arvindkumar Daulatkrishna through power of attorney Shailesh Parikh vs. State of Gujarat, Special Civil Application No.7690 of 2011, decided on 16th June, 2016. Mr. Gandhi also placed reliance on a Division Bench decision of this Court in the case of Thakorbhai Tribhovandas Rao & Ors. vs. The State of Gujarat & Ors., 1995 (1) GLH 758.
4. Mr. Gandhi, in his written submissions, has raised the following questions of law;
"(1) Whether, after gap of 7 years, the Ld. Dy. Collector (Land Reforms) Ahmedabad could have exercised his suo motu revisional powers u/s. 76A of Tenancy Act in relation to the order dtd. 6.5.2010 passed by the Ld. Mamlatdar & ALT, Daskroi-Ahmedabad, if no, in that case the impugned notice dated 31.5.2017 in Ganot/Revision/Case No./4/2017 issued by the Ld. Dy.
Collector (Land Reforms & Appeals) Ahmedabad resp. no.4 herein, in exercise of his suo-motu revisional powers u/s. 76A of the Tenancy Act would be rendered without jurisdiction?
(2) Whether, the proceedings u/s.76A of the Tenancy Act is maintainable after deciding appeal u/s. 74 of the Tenancy Act, if no, in that case the show cause notice dated 31.05.2017 in relation to the proceedings u/s.76A of the Tenancy Act would be rendered without jurisdiction?
Page 5 of 34 C/SCA/12250/2017 CAV JUDGMENT(3) Whether the doctrine of res-judicata is applicable to the revenue authorities, if yes, in that case, the exercise of suo-motu revisional powers u/s. 76A of Tenancy Act by the Ld. Dy. Collector (Land Reforms), Ahmedabad, Resp. No.4 herein is hit by the said principle of res-judicata in view of the earlier decision dated 26.10.1989 passed in Ganot Appeal No.210/88?
(4) Whether the Ld. Deputy Collector (Land Reforms) Ahmedabad, resp. no.4 herein has seriously erred in exercising his suo-motu revisional powers u/s. 76A of the Tenancy Act and further registering Ganot/Revision/Case No.4/2017 at the instance of resp.no.1 who is a stranger to the subjected land?"
5. The other submissions in writing, placed on record, are as under;
"1). It is respectfully submitted that, impugned exercise of suo-motu revisional powers by the Ld. Dy. Collector (Land Reforms) Appeals, Ahmedabad u/s.76A of the Tenancy Act beyond the period of one year is contrary to the law and hence the show cause notice dtd. 31.5.2017 of Ganot/Revision/Case No./4/2017 is required to be quashed and set aside. That, sec.76A of the Tenancy Act is reproduced and reads as under:-
"SECTION 76A: Revisional powers of Collector Where no appeal has been filed within the period of provided for it, the Collector may, suo motu or on a reference made in this behalf by the State Government, at any time,
(a) call for the record of any inquiry or the proceedings of the Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and
(b) pass such order thereon, as he deems fit:
Provided that no such record shall be called for after the Page 6 of 34 C/SCA/12250/2017 CAV JUDGMENT expiry of one year from the date of such order and no order of such Mamlatdar or Tribunal shall be modified annulled or reversed unless opportunity has been given to the interested parties to appear and be heard,"
2. It is submitted that, without prejudice to above, it is respectfully submitted that, assuming that, the Ld. Dy. Collector has called record of the Ld. Mamlatdar & ALT within one year in that case also he cannot wait for years together for exercise of his powers u/s. 76A of the Tenancy Act. That, this Hon'ble Division Bench of this Hon'ble High Court in the matter of State of Gujarat vs. Pravinbhai Bhailalbhai Gor reported in 2000(3) GLR at Page No. 2168 was pleased to dismiss the intra-court appeal filed by the State Govt. challenging the order of Ld. Single Judge of this Hon'ble High Court wherein the ld. Single Judge was pleased to quash and set aside the impugned exercise of revisional powers under Rule 108(6) of the Land Revenue Rules, as the same has been issued after 8 years from the date of mutation. The Hon'ble Supreme Court of India in the matters of Jt. Collector, Ranga Reddy Dist. Reported i n AIR2015 SC 1021, was pleased to hold that, suo motu revision power is sought to be exercised after 5 decades and if it is allowed to do so it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties. That, para 24 of the said judgment is reproduced and reads as under:
24. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for Page 7 of 34 C/SCA/12250/2017 CAV JUDGMENT otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority. (Emphasis supplied).
Hence, in the facts on hand, it is canvassed heavily on behalf of resp.-State that, the certified mutation entry of agricultural land of Sanand, relied by the petitioner before the Ld. Dy. Collector, in his appeal which was decided on 26.10.1989 was fabricated. However, the resp. State could not point out that, whether the said sale transaction of purchasing the said agricultural land bearing S.No.234 of Sanand Taluka, was subject to any proceedings u/s.84C of the Tenancy Act. It is hereby submitted that, the agricultural land of Sanand Taluka, was not subjected to any such proceedings u/s.84C of the Tenancy Act. In view of the same, on account of alleged forged mutation entry of said agricultural land of Sanand, the Ld. Dy. Collector has erred in exercising his suo motu revisional powers of Sec.76A of Tenancy Act
3. It is respectfully submitted that, on 26.10.1989 the Ld. Dy. Collector (Land Reforms) Appeals, Ahmedabad vide his order dtd. 26.10.1989 be pleased to quash and set aside the imupgned order of Ld. Mamlatdar & ALT. That, the Ld. Mamlatdar & ALT, Daskroi-Ahmedabad vide his order dtd. 6.5.2010 has therefore rightly dropped the proceedings being hit by principles of res-judicata and on the ground that, the said order dtd. 26.10.1989 has attained finality in absence of any challenge thereof.
4. It is respectfully submitted that, resultant effect of the impugned notice dtd. 31.5.2017 is tentamount to reviewing earlier order dtd. 26.10.1989, which is not permissible under the law as the revenue authorities have no power and jurisdiction to review their own orders, as has been held in the judgements of this Hon'ble High Court reported in (a) 2006(2) GLR 1073 in the matter of ABDULKARIM ALIBHAI CHAUHAN VS. STATE OF GUJARAT AND ORS., (b) 1971 GLR at Page 156 in the matter of BHAGWANJI BAWANJI PATEL VS. STATE OF GUJARAT & (c ) 2000(2) GLR at Page 1697 in the matter of KANBI ARJAN KANA AN ORS. VS. STATE OF GUJARAT AND ORS.
5. It is respectfully submitted that, impugned exercise of suo motu revisional powers by the Ld. Dy. Collector Page 8 of 34 C/SCA/12250/2017 CAV JUDGMENT (Land Reforms) Appeals, Ahmedabad u/s. 76A of the Tenancy Act, tantamount to reviewing the earlier order dtd. 26.10.1989 is also not permissible in view of the fact that earlier appeal u/s. 74 of the Tenancy Act was preferred and was decided by the Ld. Dy. Collector (Land Reforms) Appeals, Ahmedabad."
6. In such circumstances, referred to above, Mr. Gandhi prays that there being merit in this writ application, the same be allowed and the impugned show-cause notice be quashed.
7. On the other hand, this writ application has been vehemently opposed by Ms. Thakore, the learned AGP appearing for the State.
8. Ms. Thakore submitted that the plain reading of section 76A of the Act would indicate that the time limit is prescribed only for the purpose of calling for the records of any inquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of examining the legality or propriety of any order passed by the Mamlatdar or Tribunal. The period of one year has been prescribed only for such purpose. No time limit has been prescribed for the purpose of passing the order after calling for the records and proceedings. The learned AGP would submit that the entire transaction was in breach of the provisions of section 63 of the Act and a fraud could be said to have been played upon with the State Government. If fraud has been played upon, then the order can be set at naught at any point of time. The learned AGP would submit that any transaction, which is a nullity, can be declared as non-est at any point of time. The principle of exercise of suo motu power within a reasonable time would not apply in the cases of fraud. Ms. Thakore, in the last, submitted that the applicant has an effective remedy of filing his explanation to the show-cause Page 9 of 34 C/SCA/12250/2017 CAV JUDGMENT notice raising all grounds which are available to him. Ms. Thakore submitted that a show-cause notice does not give rise to any cause of action as it is not an adverse order, which effects the rights of a party. It is quite possible that, after considering the reply to the show-cause notice, the authority concerned may drop the proceedings. A show-cause notice does not infringe the rights of any one. It is only when a final order, adversely effecting him, is passed that the said person can be said to have any grievance. Ms. Thakore would submit that when a show-cause notice is issued under a statutory provision calling upon a person to show-cause, he must ordinarily, place his case before the authority by showing cause. The purpose of issuing a show-cause notice is to afford an opportunity of hearing to the person concerned, and the Courts should be reluctant to interfere at that stage as it would be premature. In such circumstances, referred to above, the learned AGP prays that there being no merit in this writ application, the same be rejected.
9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Deputy Collector committed any error in issuing the impugned show-cause notice.
10. On 3rd July, 2017, this Court passed the following order;
"1 The challenge in this petition is to a show cause notice issued by the Deputy Collector, Ahmedabad, in exercise of his power under Section 76A of the Gujarat Tenancy Act. Indisputably, such suo motu exercise of power of revision is almost after a period of twenty years. The case of the authority appears to be one of fraud. If fraud Page 10 of 34 C/SCA/12250/2017 CAV JUDGMENT is complained, or if the action sought to be revised by the Deputy Collector, in exercise of his power under Section 76A of the Tenancy Act is a nullity, then whether the period of limitation prescribed of one year would render the show cause notice bad or without jurisdiction. Reliance is placed on a Supreme Court decision in the case of Joint Director, Ranga Reddy District and another vs. D. Narsing Rao and others [AIR 2015 SC 1021].
2 Let Notice for final disposal be issued to the respondents, returnable on 18th July 2017. Ms. Nisha Thakore, the learned Assistant Government Pleader waives service of notice for and on behalf of the respondent No.3 State of Gujarat. Direct service today to the other respondents is permitted.
3 Let there be an ad-interim order in terms of para 7[B].
Notify the matter on top of the Board."
11. Let me first deal with the submission of the learned AGP as regards the interference at the stage of a show-cause notice by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. It is true that interference by the High Court would be justified only when the notice is ex-facie a 'nullity' or non-est in the eye of law for absolute want of jurisdiction of the authority to even investigate into the facts, or totally 'without jurisdiction' in the traditional sense of that expression i.e., even the commencement or initiation of the proceedings on the face of it, and without anything more, is totally unauthorised. In all other cases, it is only appropriate that the party shows the cause before the authority concerned and takes up the objection regarding jurisdiction therein. Whether the show- cause notice was found at any legal premises, is a jurisdictional issue which can even be urged by the recipient in Page 11 of 34 C/SCA/12250/2017 CAV JUDGMENT his reply to the notice, and such a issue can also be initially adjudicated by the authority, issuing very notice before the aggrieved can approach the Court.
12. The abstinence from interference at the stage of issuance of the show-cause notice, in order to relegate the parties to the proceedings before the authority concerned, is the normal rule. However, the said rule is not without exception. Where a show- cause notice is issued either without jurisdiction, or is an abuse of the process of law, the Writ Court would not hesitate to interfere even at the stage of issuance of the show-cause notice. This Court has the power to issue, in a fit case, an order prohibiting an authority from acting without jurisdiction. Where such an action of the authority, acting without jurisdiction, subjects or is likely to subject a person to lengthy proceedings, and unnecessary harassment, the High Court would be justified in issuing appropriate orders or directions to prevent such consequences. The existence of an alternative remedy is not always a sufficient reason for refusing a party relief by a Writ or Order prohibiting an authority, acting without jurisdiction, from continuing such action. Where the threat of a prejudicial action is wholly without jurisdiction or a gross abuse of the process of law, a person cannot be asked to wait for injury to be cause to him, before seeking the protection of the Court.
13. The facts of this case are such that I am persuaded to interfere at the stage of the impugned show-cause notice because I am of the view that issuance of the same in exercise of suo motu power under section 76A of the Tenancy Act after almost a period of 20 years is without jurisdiction and gross misuse of the suo motu power conferred by the statute on the Page 12 of 34 C/SCA/12250/2017 CAV JUDGMENT authority.
14. Let me now deal with the issue of alleged fraud. The principal issue raised in this writ application as regards the delay in exercise of suo motu powers has been very exhaustively dealt with by the Supreme Court in the case of Joint Collector, Ranga Reddy Dist. & Anr. vs. D. Narsing Rao & Ors. etc. etc., AIR 2015 SC 1021. Justice Nagappan (as his lordship then was) after referring to various other decisions of the Supreme Court, observed as under;
"In the decision in Collector and others vs. P. Mangamma and others (2003) 4 SCC 488 this Court while dealing with suo motu action against irregular assignments under the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 held that it would be hard to give an exact definition of the word "reasonable" and a reasonable period would depend upon the facts of the case concerned and on the facts of the case in which the decision arose, suo motu action taken after a period of thirty years was remitted to the High Court for fresh consideration.
In the decision in State of Maharashtra and another vs. Rattanlal (1993) 3 SCC 326 this Court while dealing with revisional power under Section 45 of Maharashtra Agricultural Land (Ceiling and Holdings)Act, 1961 held that suo motu revisional power may not be exercised after the expiry of three years from the date of the impugned order, however, where suppression of material facts, namely, existence of the undeclared agricultural land had come to the knowledge of the higher authorities after a long lapse of time, the limitation would start running only from the date of discovery of the fraud or suppression.
In the decision in State of Orissa and others vs. Brundaban Sharma and another (1995) Supp.(3) SCC 249 this Court while dealing with the power of revision under Section 38-B of Orissa Estates Abolition Act, 1951 held that the Board of Revenue exercised the power of Page 13 of 34 C/SCA/12250/2017 CAV JUDGMENT revision 27 years after the date of alleged grant of patta but its authenticity and correctness was shrouded with suspicious features and, therefore, exercise of revisional power was legal and valid.
8. We heard the submissions made by Mr. U.U. Lalit, Mr. Pravin H. Parekh, Mr. Ranjit Kumar, Mr. P.V. Shetty, learned senior counsels and also the other learned counsels appearing for the respondents. The main submissions of the learned counsels appearing for the respondents are that the names of the predecessors in title of the respondents are found mentioned in the Khasra Pahani of the year 1954-55 and the purchase of the subject land by the respondents from them under registered sale deeds are not in dispute and they have been regularly paying land revenue continuously since the year 1954 and substantial rights on account of continuous possession and enjoyment of the subject property has been accrued to the respondents and the exercise of suo-motu revisional power after long lapse of time is arbitrary and summary remedy of enquiry and correction of records cannot be invoked when there is bonafide dispute of title and liberty has been given to the appellants to work out its remedies by way of filing civil suit and the findings of the High Court are sustainable on facts and law. In support of their submissions reliance was placed on the following decisions of this Court. In the decision in State of Gujarat vs. Patil Raghav Natha and others (1969) 2 SCC 187 this Court while adverting to Sections 65 and 211 of the Bombay Land Revenue Code, 1879 held that though there is no period of limitation prescribed under Section 211 to revise an order made under Section 65 of the Act, the said power must be exercised in reasonable time and on the facts of the case in which the decision arose, the power came to be exercised more than one year after the order and that was held to be too late.
In the decision in Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim (1997) 6 SCC 71 this Court while dealing with Section 84-C of Bombay Tenancy and Agricultural Lands Act, 1976 held that though the said Section does not prescribe for any time limit for initiation of proceeding such power should be exercised within a reasonable time and on the facts of the case, the suo motu enquiry initiated under the said Section after a Page 14 of 34 C/SCA/12250/2017 CAV JUDGMENT period of nine months was held to be beyond reasonable time.
In the decision in Santoshkumar Shivgonda Patil and others vs. Balasaheb Tukaram Shevale and others (2009) 9 SCC 352 this Court while dealing with the power of revision under Section 257 of the Maharashtra Land Revenue Code, 1966 held as follows :
"11. It seems to be fairly settled that if a statute does not prescribe the time-limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein.
12. Ordinarily, the reasonable period within which the power of revision may be exercised would be three years under Section 257 of the Maharashtra Land Revenue Code subject, of course, to the exceptional circumstances in a given case, but surely exercise of revisional power after a lapse of 17 years is not a reasonable time. Invocation of revisional power by the Sub- Divisional Officer under Section 257 of the Maharashtra Land Revenue Code is plainly an abuse of process in the facts and circumstances of the case assuming that the order of the Tahsildar passed on 30-3-1976 is flawed and legally not correct."
In the decision in State of Punjab and others vs. Bhatinda District Cooperative Milk Producers Union Ltd. (2007) 11 SCC 363 this Court while dealing with the revisional power under Section 21 of the Punjab General Sales Tax Act, 1948 held thus :
"17. A bare reading of Section 21 of the Act would reveal that although no period of limitation has been prescribed therefor, the same would not mean that the suo motu power can be exercised at any time.
18. It is trite that if no period of limitation has been Page 15 of 34 C/SCA/12250/2017 CAV JUDGMENT prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors.
19. Revisional jurisdiction, in our opinion, should ordinarily be exercised within a period of three years having regard to the purport in terms of the said Act. In any event, the same should not exceed the period of five years................"
In the decision in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham vs. K. Suresh Reddy and others (2003) 7 SCC 667 this Court while dealing with suo motu power of revision under Section 50-B(4) of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Land Act, 1950 held as follows :
"9. ...............In the absence of necessary and sufficient particulars pleaded as regards fraud and the date or period of discovery of fraud and more so when the contention that the suo motu power could be exercised within a reasonable period from the date of discovery of fraud was not urged, the learned Single Judge as well as the Division Bench of the High Court were right in not examining the question of fraud alleged to have been committed by the non-official respondents. Use of the words "at any time" in sub-section (4) of Section 50-B of the Act only indicates that no specific period of limitation is prescribed within which the suo motu power could be exercised reckoning or starting from a particular date advisedly and contextually. Exercise of suo motu power depended on facts and circumstances of each case. In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act). Hence, it appears that without stating from what date the period of limitation starts and within what period the suo Page 16 of 34 C/SCA/12250/2017 CAV JUDGMENT motu power is to be exercised, in sub-section (4) of Section 50-B of the Act, the words "at any time" are used so that the suo motu power could be exercised within reasonable period from the date of discovery of fraud depending on facts and circumstances of each case in the context of the statute and nature of rights of the parties. Use of the words "at any time" in sub-section (4) of Section 50-B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. If one has to simply proceed on the basis of the dictionary meaning of the words "at any time", the suo motu power under sub-section (4) of Section 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity. Exercise of suo motu power "at any time" only means that no specific period such as days, months or years are not prescribed reckoning from a particular date. But that does not mean that "at any time" should be unguided and arbitrary. In this view, "at any time" must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation."
9. Consequent to the merger of Hyderabad State with India in 1948 the Jagirs were abolished by the Andhra Pradesh (Telangana Area) Abolition of Jagirs Regulation, 1358 fasli. 'Khasra Pahani' is the basic record of rights prepared by the Board of Revenue Andhra Pradesh in the year 1954-55. It was gazetted under Regulation 4 of the A.P. (Telangana Area) Record of Rights in Land Regulation 1358F. As per Regulation No.13 any entry in the said record of rights shall be presumed to be true until the contrary is proved. The said Regulation of 1358- F was in vogue till it was repealed by the A.P. Rights in Land and Pattadar Pass Books Act, 1971, which came into force on 15.8.1978. In the 2nd edition (1997) of "The Law Lexicon" by P. Ramanatha Aiyer (at page 1053) Page 17 of 34 C/SCA/12250/2017 CAV JUDGMENT 'Khasra' is described as follows: "Khasra is a register recording the incidents of a tenure and is a historical record. Khasra would serve the purpose of a deed of title, when there is no other title deed."
10. Admittedly, the names of the predecessors in title of the respondents are found mentioned in the Khasra Pahani of the year 1954-55 pertaining to Survey Nos.36 and 37 of Gopanpally village. The purchase of the said lands by the respondents from them under registered sale deeds are also not seriously disputed. The further fact is that they have been regularly paying land revenue continuously since the year 1954. The appellants herein issued the impugned notice dated 31.12.2004 under Section 166B of A.P. (Telangana Area) Land Revenue Act,1317 F (1907) for cancellation of entries in the Khasra Pahani of the year 1953-54, by fixing the date of inquiry as 5.2.2005 and that notice is the subject matter of challenge here.
Regulation 166B reads as follows:
"166-B. Revision:-
Subject to the provisions of the Andhra Pradesh (Telangana Area) Board of Revenue Regulation, 1358 F, the Government or any Revenue officer not lower in rank to a Collector the Settlement Commissioner of Land Records may call for the record of a case or proceedings from a subordinate department and inspect it in order to satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper and may make suitable order in that behalf;
Provided that no order or decision affecting the rights of the ryot shall be modified or annulled unless the concerned parties are summoned and heard. (2) Every Revenue Officer lower in rank to a Collector or Settlement Commissioner may call for the records of a case or proceedings for a subordinate department and satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper and if, in his opinion, any order or decision or, proceedings should be modified or annulled, he shall put up the file of the case and with his opinion to the Collector or Settlement Commissioner as the case may be. Thereupon the Collector or Settlement Commissioner may pass suitable order under the provisions of sub-section (1).Page 18 of 34 C/SCA/12250/2017 CAV JUDGMENT
(3) The original order or decision or an authentic copy of the original order or decision sought to be revised shall be filed along with every application for revision."
11. No time limit is prescribed in the above Regulation for the exercise of suo motu power but the question is as to whether the suo motu power could be exercised after a period of 50 years. The Government as early as in the year 1991 passed order reserving 477 acres of land in Survey Nos. 36 and 37 of Gopanpally village for house- sites to the government employees. In other words the Government had every occasion to verify the revenue entries pertaining to the said lands while passing the Government Order dated 24.9.1991 but no exception was taken to the entries found. Further the respondents herein filed Writ Petition No.21719 of 1997 challenging the Government order dated 24.9.1991 and even at that point of time no action was initiated pertaining to the entries in the said survey numbers. Thereafter, the purchasers of land from respondent Nos.1 and 2 herein filed a civil suit in O.S.No.12 of 2001 on the file of Additional District Judge, Ranga Reddy District praying for a declaration that they were lawful owners and possessors of certain plots of land in survey No.36, and after contest, the suit was decreed and said decree is allowed to become final. By the impugned Notice dated 31.12.2004 the suo motu revision power under Regulation 166B referred above is sought to be exercised after five decades and if it is allowed to do so it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties.
12. In the light of what is stated above we are of the view that the Division Bench of the High Court was right in affirming the view of the learned single Judge of the High Court that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of law.
13. Thus, we find no merit in these appeals.
Consequently they are dismissed with no order as to costs. "
15. Justice T.S. Thakur (as his lordship then was), in his Page 19 of 34 C/SCA/12250/2017 CAV JUDGMENT separate but concurring judgment, observed as under;
"18. The writ-petitioners, as noted earlier, claim to have purchased an extent of 90 acres of land in Survey Nos.36 and 37 from the erstwhile Pattadars recorded in the revenue records. The present dispute is, therefore, limited to that extent of land only. That being so, if the notice invoking the revisional jurisdiction under Section 166B of A.P. (Telangana Area) Land Revenue Act has been not assailed by any other effected party, we should not be understood to be interfering with the same qua such persons. Having said that the only question which the High Court has addressed and which has been elaborately dealt with by it in the impugned orders is whether revisional powers vested in the competent authority under Section 166B of the Act aforementioned could be invoked 50 years after the alleged fraudulent entries were made. The contention urged on behalf of the appellant primarily was that since there is no period of limitation prescribed for invoking the revisional powers under the provisions mentioned above, there should be no impediment in the exercise of the same intervening delay notwithstanding. There is no error much less any perversity in that view. The legal position is fairly well- settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power revisional or otherwise such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference in so far as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period.
19. In one of the earlier decisions of this Court in S.B. Gurbaksh Singh v. Union of India 1976 (2) SCC 181, this Court held that excercise of suo motu power of revision must also be within a reasonable time and that any unreasonable delay in the exercise may affect the validity. But what would constitute reasonable time would depend upon the facts of each case.Page 20 of 34 C/SCA/12250/2017 CAV JUDGMENT
20. To the same effect is the decision of this Court in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham V. K. Suresh Reddy and Ors. (2003) 7 SCC 667 where this Court held that even in cases of fraud the revisional power must be exercised within a reasonable period and that several factors need to be kept in mind while deciding whether relief sooner be denied only on the ground of delay. The Court said:
"In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act)."
21. To the same effect is the view taken by this Court in Sulochana Chandrakant Galande. v. Pune Municipal Transport and Others (2010) 8 SCC 467 where this Court reiterated the legal position and held that the power to revise orders and proceedings cannot be exercised arbitrarily and interminably. This Court observed:
"The legislature in its wisdom did not fix a time-limit for exercising the revisional power nor inserted the words "at any time" in Section 34 of the 1976 Act. It does not mean that the legislature intended to leave the orders passed under the Act open to variation for an indefinite period inasmuch as it would have the effect of rendering title of the holders/allottee(s) permanently precarious and in a state of perpetual uncertainty. In case, it is assumed that the legislature has conferred an everlasting and interminable power in point of time, the title over the declared surplus land, in the hands of the State/allottee, would forever remain virtually insecure. The Court has to construe the statutory provision in a way which makes the provisions workable, advancing the purpose and object of enactment of the statute".
22. In State of H.P. and Ors. v. Rajkumar Brijender Singh and Ors. (2004) 10 SCC this Court held that in the absence of any special circumstances a delay of 15 years Page 21 of 34 C/SCA/12250/2017 CAV JUDGMENT in suo motu exercise of revisional power was impermissible as the delay was unduly long and unexplained. This Court observed:
"We are now left with the second question which was raised by the respondents before the High Court, namely, the delayed exercise of the power under sub-section (3) of Section 20. As indicated above, the Financial Commissioner exercised the power after 15 years of the order of the Collector. It is true that sub-section (3) provides that such a power may be exercised at any time but this expression does not mean there would be no time- limit or it is in infinity. All that is meant is that such powers should be exercised within a reasonable time. No fixed period of limitation may be laid but unreasonable delay in exercise of the power would tend to undo the things which have attained finality. It depends on the facts and circumstances of each case as to what is the reasonable time within which the power of suo motu action could be exercised. For example, in this case, as the appeal had been withdrawn but the Financial Commissioner had taken up the matter in exercise of his suo motu power, it could well be open for the State to submit that the facts and circumstances were such that it would be within reasonable time but as we have already noted that the order of the Collector which has been interfered with was passed in January 1976 and the appeal preferred by the State was also withdrawn sometime in March 1976. The learned counsel for the appellant was not able to point out such other special facts and [pic]circumstances by reason of which it could be said that exercise of suo motu power after 15 years of the order interfered with was within a reasonable time. That being the position in our view, the order of the Financial Commissioner stands vitiated having been passed after a long lapse of 15 years of the order which has been interfered with. Therefore, while holding that the Financial Commissioner would have power to proceed suo motu in a suitable case even though an appeal preferred before the lower appellate authority is withdrawn, maybe, by the State. Thus the view taken by the High Court is not sustainable. But the Page 22 of 34 C/SCA/12250/2017 CAV JUDGMENT order of the Financial Commissioner suffers from the vice of the exercise of the power after unreasonable lapse of time and such delayed action on his part nullifies the order passed by him in exercise of power under sub-section (3) of Section 20".
23. We may also refer to the decision of this Court in M/s Dehri Rohtas Light Railway Company Ltd. V. District Board, Bhojpur and Ors. (1992) 2 SCC 598 where the Court explained the legal position as under:
"The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own [pic]facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not as to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand case relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed".Page 23 of 34 C/SCA/12250/2017 CAV JUDGMENT
24. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.
25. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellant-State to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. In as much as, the notice was issued as late as on 31st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed."
Page 24 of 34 C/SCA/12250/2017 CAV JUDGMENT16. Thus, the Supreme Court, in Ranga Reddy (supra) made itself very clear that even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. What is important is the observation of the Supreme Court that simply describing an act or transaction to be fraudulent, will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.
17. I don't find any fraud in the case on hand. Let me assume for the moment that the transaction in question was in breach of the provisions of section 63 of the Tenancy Act, but that by itself, is not sufficient to accuse the parties of having played fraud with the State Government.
18. Even otherwise, any transaction in contravention of section 63 or 64 of the Act is made invalid and not void. This becomes clear from the language of section 63 and the provisions contained in section 64(8) of the Act thereof. There is a fine distinction between the terms "invalid" and "void". It become clear from the language of the statutory provisions, referred to above, that any invalid transaction will have to be decided or declared invalid. It would thus mean that an invalid transaction per se may be invalid, but it will not be invalid unless it is decided or declared to be so. It has to be invalidated. It thus becomes clear that an invalid transaction is made equivalent to a voidable transaction and not a void transaction. It is a trite principle of law to say that a voidable transaction remains valid till it is avoided, annulled or Page 25 of 34 C/SCA/12250/2017 CAV JUDGMENT invalidated. In order to annul, avoid or invalidate a voidable transaction, powers for the purpose will have to be exercised within reasonable time.
19. A learned Single Judge of this Court in the case of Mavjibhai Dharsibhai & Ors. vs. State of Gujarat & Ors., 1994 (2) GLR 1168 had the occasion to consider the power under section 84-C of the Act. I may quote the relevant observations as under;
" 17. The aforesaid discussion would not mean that no powers under Section 84-C of the Act can be exercised beyond a period of one year from the date the mutation entry in the revenue records with respect to the said transaction is certified in accordance with Section 135D(6) of the Code. If the power under Section 84-C of the Act is exercised beyond the period of one year, the affected party will be justified in showing to the authority that the initiation of the proceedings for the purpose would materially prejudice his case. The affected party, for instance, might have made huge investment after expiry of one year from the date the entry in the revenue records in his favour is certified. If the proceedings for annulment of such transaction is initiated after one year from its certification in the revenue records, the affected party might suffer huge loss on account of his having changed his position vis-a-vis his holding. In that case, if the authority initiating the proceedings under Section 84- C of the Act is satisfied that the action thereunder would prejudicially and materially effect the recipient of the notice, he need not exercise his powers thereunder. If powers under Section 84-C of the Act are sought to be exercised beyond highly unreasonable time, say about 5 years after the entry pertaining to the so-called invalid transaction in the revenue records is certified, the authority exercising such powers will have to justify his belated action. It could be that a fraud might have been committed with the authority and such fraud might have come to light after expiry of more than 5 years from the date the entry in the revenue records was certified with Page 26 of 34 C/SCA/12250/2017 CAV JUDGMENT respect to the sale transaction. In such a case, the exercise of powers under Section 84-C of the Act might be found justifiable. But in that case it would be for the authority initiating the proceedings under Section 84-C of the Act to justify exercise of such powers after lapse of such a long period.
18. In each of the present case, the sale transaction was certified in the revenue records some time in June 1981 and the proceedings under Section 84-C of the Act were initiated with respect to such sale transactions some time in May or June 1983, that is, nearly 2 years after the mutation entry in the revenue records with respect to the sale transaction in question was certified. The proceedings in question would certainly be beyond the reasonable period of one year. In that case, it will be open to the petitioners as recipients of the notice under Section 84-C of the Act to show to the authority that they would be prejudicially affected by such action after a period of one year by pointing out huge investment they might have made for improvement of the lands in question. In fact, as transpiring from the order at Annexure 'B' to this petition, the petitioners have in fact contended, in answer to the show-cause notice, that they have made huge investment after purchase of the lands in question. The first authority has not at all dealt with that contention urged before it by the petitioners. It appears that neither the appellate authority nor the Gujarat Revenue Tribunal at Ahmedabad has directed itself to this aspect of the case. Non-consideration of this case coupled with exercise of powers under Section 84-C of the Act beyond a period of one year from the date the entry in respect of the sale transaction in question was certified in the revenue records, would certainly vitiate exercise of such powers. It would, therefore, be in the fitness of things to direct a fresh inquiry in the matter. "
20. In the case of Thakorbhai Tribhovandas Rao (supra), a Division Bench of this Court observed as under;
"3. Undisputedly, the orders of the Mamlatdar and A.L.T., Matar which are sought to be revised under Section 76-A were passed in the years 1971, 1972 and 1973. The petitioners have received the notice to appear before the Deputy Collector only in September, 1981. The provisions Page 27 of 34 C/SCA/12250/2017 CAV JUDGMENT of Section 76A read as under:
76A. Where no appeal has been filed within the period provided for it the Collector may, svo motu or on a reference made in this behalf by the State Government, at any time,-
(a) call for the record of any inquiry or the proceeding of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and
(b) pass such order thereon as he deems fit:
Provided that no such record shall be called for after the expiry of one year from the date of such order and no order of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard. It will be seen that no record can be called for by the Collector after the expiry of one year from the date of the order made by the Mamlatdar or the Tribunal, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of the proceedings of the Mamlatdar or Tribunal. The proviso to Section 76A would be applicable even in a case where a Reference is made by the State Government requiring the Collector to call for the record and proceedings for the purpose of satisfying himself as to the legality or propriety of the order. The limitation prescribed by the proviso for the exercise of the revisional powers beyond the expiry of one year from the date of the order is clear and explicit and the Collector will have no revisional power to be exercised beyond the period of one year prescribed by the proviso to Section 76A. Therefore, the only contention which was raised on behalf of the petitioners against the validity of the impugned notices belatedly seeking to take up the orders of Mamlatdar and A.L.T passed in 1971, 1972, 1973 for Revision under Section 76A of the Act derserves to be accepted. The learned Counsel appearing for the respondents had hardly any answer to the mandatory provisions of the proviso to Section 76A prescribing the time-limit during which the power could be exercised for revising the orders of the Mamlatdar or the Tribunal. This petition, therefore, deserves to be allowed. The impugned notices issued by the Deputy Collector, Kheda in Tenancy Page 28 of 34 C/SCA/12250/2017 CAV JUDGMENT Revision Nos. 183 to 224 dated 4-9-1981 seeking to revise under Section 76A, the orders made by the Mamlatdar or the Tribunal in 1971, 1972 and 1973 are hereby set aside. Rule is made absolute accordingly with no order as to costs. "
21. In the case of Thakorbhai Tribhovandas Rao (supra) a learned Single Judge of this Court observed;
"3. Undisputedly, the orders of the Mamlatdar and A.L.T., Matar which are sought to be revised under Section 76-A were passed in the years 1971, 1972 and 1973. The petitioners have received the notice to appear before the Deputy Collector only in September, 1981. The provisions of Section 76A read as under:
76A. Where no appeal has been filed within the period provided for it the Collector may, svo motu or on a reference made in this behalf by the State Government, at any time,-
(a) call for the record of any inquiry or the proceeding of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and
(b) pass such order thereon as he deems fit:
Provided that no such record shall be called for after the expiry of one year from the date of such order and no order of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard. It will be seen that no record can be called for by the Collector after the expiry of one year from the date of the order made by the Mamlatdar or the Tribunal, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of the proceedings of the Mamlatdar or Tribunal. The proviso to Section 76A would be applicable even in a case where a Reference is made by the State Government requiring the Collector to call for the record and proceedings for the purpose of satisfying himself as to the legality or propriety of the order. The limitation prescribed by the proviso for the exercise of the revisional powers beyond Page 29 of 34 C/SCA/12250/2017 CAV JUDGMENT the expiry of one year from the date of the order is clear and explicit and the Collector will have no revisional power to be exercised beyond the period of one year prescribed by the proviso to Section 76A. Therefore, the only contention which was raised on behalf of the petitioners against the validity of the impugned notices belatedly seeking to take up the orders of Mamlatdar and A.L.T passed in 1971, 1972, 1973 for Revision under Section 76A of the Act derserves to be accepted. The learned Counsel appearing for the respondents had hardly any answer to the mandatory provisions of the proviso to Section 76A prescribing the time-limit during which the power could be exercised for revising the orders of the Mamlatdar or the Tribunal. This petition, therefore, deserves to be allowed. The impugned notices issued by the Deputy Collector, Kheda in Tenancy Revision Nos. 183 to 224 dated 4-9-1981 seeking to revise under Section 76A, the orders made by the Mamlatdar or the Tribunal in 1971, 1972 and 1973 are hereby set aside. Rule is made absolute accordingly with no order as to costs. "
22. In the case of Arunbhai Laljibhai Gadhiya (supra), a learned Single Judge of this Court observed as under;
"4. The learned counsel Mr. Patel for the petitioners has vehemently submitted that the Collector could not have initiated the proceedings under Section 76-A of the Tenancy Act after a period of one year of the order passed by the Mamlatdar. He also submitted that the Collector himself had granted the NA permission to the predecessor in title of the petitioners in the year 2009, and now the proceedings are sought to be initiated under Section 76-A of the Tenancy Act after lapse of more than four years of the order passed by the Mamlatdar. However, the learned AGP Ms. Bhatt submitted that the order of Mamlatdar being without jurisdiction, the Collector had initiated the proceedings under Section 76- A of the Tenancy Act.
5. In the instant case, the facts narrated above are not disputed by the learned AGP. The only question therefore that arises before this Court is whether the Collector could have initiated the proceedings under Section 76-A Page 30 of 34 C/SCA/12250/2017 CAV JUDGMENT of the Tenancy Act after a period of one year of the order passed by the Mamlatdar on 31.01.2007. In the opinion of the Court, the legal position has been well settled by this Court in the case of Thakorbhai Tribhovandas Rao and Ors. Vs. State of Gujarat and Ors., reported in 1995(1) GLH 758, in which it has been held as under:-
"It will be seen that no record can be called for by the Collector after the expiry of one year from the date of the order made by the Mamlatdar or the Tribunal, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of the proceedings of the Mamlatdar or Tribunal. The proviso to Sec. 76A would be applicable even in a case where a Reference is made by the State Government requiring the Collector to call for the record and proceedings for th e purpose of satisfying himself as to the legality or propriety of the order. The limitation prescribed by the proviso for the exercise of the revisional powers beyond the expiry of one year from the date of the order is clear and explicit and the Collector will have no revisional power to be exercised beyond the period of one year prescribed by the proviso to Sec. 76A."
6. In the instant case, the order dated 31.01.2007 passed by the Mamlatdar is sought to be revised by the Collector under Section 76-A of the Tenancy Act after a period of about four years, which is not permissible in view of the proviso to the said section. Hence, initiation of proceedings under Section 76-A at the instance of Collector by issuing show-cause notice being illegal, the same deserves to be quashed and set aside, more particularly, when the Collector himself had granted NA permission to the predecessor in title of the petitioners in respect of the land in question, permitting them to use the land for non-agricultural purpose.
7. In that view of the matter, the notice dated 21.09.2011 issued by the Deputy Collector, Surat, is quashed and set aside. The petition is allowed Page 31 of 34 C/SCA/12250/2017 CAV JUDGMENT accordingly. It is clarified that the Court has not decided the other issues though raised in the petition. Rule is made absolute accordingly. "
23. In the case of Shah Arvindkumar Daulatkrishna (supra), a learned Single Judge of this Court observed as under;
"6. As stated herein above, the legality of the impugned orders passed by the respondent Nos.2 and 4 is being examined only qua the provisions contained in Section 76A of the Tenancy Act as the respondent No.2 has reviewed the order of the Mamlatdar under Section 76A of the Tenancy Act. From the bare reading of the proviso to Section 76A of the Tenancy Act, it clearly transpires that the Collector could not have called for the record of any proceedings either suo motu or on the reference made by the State Government, after the expiry of one year from the date of such order passed by the Mamlatdar or Tribunal. In the case of Thakorbhai Tribhovandas Rao and Ors. Vs. State of Gujarat and Ors.(supra), it has also been held as under:-
"It will be seen that no record can be called for by the Collector after the expiry of one year from the date of the order made by the Mamlatdar or the Tribunal, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of the proceedings of the Mamlatdar or Tribunal. The proviso to Sec. 76A would be applicable even in a case where a Reference is made by the State Government requiring the Collector to call for the record and proceedings for th e purpose of satisfying himself as to the legality or propriety of the order. The limitation prescribed by the proviso for the exercise of the revisional powers beyond the expiry of one year from the date of the order is clear and explicit and the Collector will have no revisional power to be exercised beyond the period of one year prescribed by the proviso to Sec. 76A."
7. So far as the facts of the present case are concerned, the respondent No.2 had sought to review the order passed by the Mamlatdar after the expiry of ten years of the said order and, therefore, such review was hit by the proviso to Section 76A of the Tenancy Act. It is Page 32 of 34 C/SCA/12250/2017 CAV JUDGMENT true that this Court, while passing the order in the petition filed by the petitioners, had observed that the powers of the respondents to examine the legality of the order passed by the Mamlatdar in accordance with law was kept open, however, at the same time, all the contentions of the petitioners were also kept open. It is needless to say that the respondent No.2 was required to act in accordance with law and keeping in view the provisions contained in the Tenancy Act. Since the proviso to Section 76A of the Tenancy Act does not allow the Collector to call for the record or to examine the legality of the order of the Mamlatdar or the Tribunal after the expiry of one year from the date of such order, the impugned orders passed by the Collector as well as the Revenue Tribunal are in violation of the said provision and, therefore, bad in law.
8. In that view of the matter, the impugned orders dated 11.5.2011 and 9.2.2010 deserve to be set aside and, are hereby set aside. The petition stands allowed accordingly. Rule is made absolute accordingly."
24. Thus, I am convinced that the suo motu exercise of power at the end of the Deputy Collector under section 76A of the Act after a period of almost twenty years is nothing but an abuse of the provisions of the Act.
25. In the result, this writ application succeeds and is hereby allowed. The impugned show-cause notice dated 31 st May, 2017, Annexure-E to this writ application is hereby quashed. The proceedings thereby stand closed. The Registry is directed to send one copy of this judgement and order to the Principal Secretary, Revenue Department with specific instructions that the State Government shall forward one copy each of this judgement to all the Collectors across the State.
Direct service is permitted.
(J.B.PARDIWALA, J) Vahid Page 33 of 34 C/SCA/12250/2017 CAV JUDGMENT Page 34 of 34