Gujarat High Court
Nrupal Narendrabhai Dalwadi & 5 vs State Of Gujarat Thro Secretary & 3 on 5 May, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/4971/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4971 of 2012
With
SPECIAL CIVIL APPLICATION NO. 7049 of 2012
With
SPECIAL CIVIL APPLICATION NO. 6957 of 2012
With
SPECIAL CIVIL APPLICATION NO. 6876 of 2012
With
SPECIAL CIVIL APPLICATION NO. 15321 of 2015
With
SPECIAL CIVIL APPLICATION NO. 15322 of 2015
With
SPECIAL CIVIL APPLICATION NO. 15348 of 2015
With
SPECIAL CIVIL APPLICATION NO. 15349 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== NRUPAL NARENDRABHAI DALWADI & 5....Petitioners Versus STATE OF GUJARAT THRO SECRETARY & 3....Respondents ========================================================== Appearance: (In all SCAs:) Page 1 of 183 HC-NIC Page 1 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT MR MIHIR J THAKORE, SENIOR ADVOCATE, WITH MR VIMAL A PUROHIT & MR SP MAJMUDAR, ADVOCATES for the Petitioners MR PRAKASH JANI, ADDITIONAL ADVOCATE GENERAL WITH MR VISHRUT JANI, ASSISTANT GOVERNMENT PLEADER for the Respondents ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 05/05/2017 COMMON C.A.V. JUDGMENT
1. Rule. Mr.Vishrut R. Jani, learned Assistant Government Pleader, waives service of notice of Rule for the respondents in each petition.
2. This group of eight petitions has been filed by the same petitioners under Articles 226 of the Constitution of India. Four petitions, namely, Special Civil Applications Nos.4971/2012, 7049/2012, 6957/2012 and 6876/2012, have been filed by the petitioners challenging separate orders dated 21.03.2012, passed by the District Collector, Vadodara, rejecting the applications made by them for the grant of Non Agricultural Use Permission ("N.A. Permission"). These four petitions would hereinafter be referred to as the first set of petitions and reference would be made to the facts and contentions raised in Page 2 of 183 HC-NIC Page 2 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Special Civil Application No.4971/2012. The second set of petitions, namely, Special Civil Applications Nos.15321/2015, 15322/2015, 15348/2015 and 15349/2015, have been filed challenging separate showcause notices dated 05.03.2015, issued by the District Collector, Vadodara, in exercise of suo motu powers under Section 211 of the Gujarat Land Revenue Code, 1879 ("the Code"). The lead matter in the second set of petitions would be Special Civil Application No.15321/2015, to the contents of which reference would be made for the sake of convenience. The showcause notices impugned in the second set of petitions are consequential to the order passed by the Collector, rejecting the N.A.Permission in the first set of petitions. All the petitions are, therefore, interconnected and as similar issues of fact and law are involved, they are required to be heard and decided together.
3. The subject lands from which the dispute has arisen are situated at Village Sherkhi, Taluka and District Vadodara. The description of the Page 3 of 183 HC-NIC Page 3 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT lands involved in the first set of petitions is as below:
* Special Civil Application No.4971/2012 - Survey Nos.556/17, 556/3, 556/7, 556/6 - New Survey Nos.556/17, 556/3 and 556/6 * Special Civil Application No.6957/2012 - Survey No.556/9 * Special Civil Application No.7049/2012 - Survey Nos.555/1, 555/2, 556/16, 556/2, 556/10, 556/11, 556/12 and 556/5 - New Survey Nos.555/1, 556/2 and 556/5 * Special Civil Application No.6876/2012 - Survey No.556/1 The dispute pertains to the same lands in the second set of petitions as well.
4. A brief narrative of the background in which the petitions came to be preferred, emerging from a perusal of the voluminous record, is required to be given. The petitioners purchased the lands in question by different registered Sale Deeds, in the year 1981, after paying full consideration and due verification of the revenue records showing that the lands were of old tenure. It is the case of the petitioners that before purchasing the land, they have carried out a proper and thorough verification of the revenue Page 4 of 183 HC-NIC Page 4 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT records and found that the lands are of old tenure. Necessary mutation entries in respect of the registered Sale Deeds of the petitioners were posted in the revenue record. Being desirous of using the land for Non Agricultural Purposes, more particularly, residential purposes, the petitioners made an application dated 01.10.2010, to the second respondent, District Collector, Vadodara, in the prescribed format. Pursuant to the aforesaid application, the second respondent informed the petitioners that their application for grant of N.A.Permission has been forwarded to the Mamlatdar, Rural, for further proceedings. Thereafter, by a communication dated 08.04.2011, the second respondent informed the petitioners that the application dated 01.10.2010 has been rejected in view of the negative opinion of the Mamlatdar and ALT, since necessary compliance was not made by the petitioners as required by the Mamlatdar, vide his communication dated 24.01.2011. However, Vadodara Urban Development Authority ("VUDA"), vide its communication dated Page 5 of 183 HC-NIC Page 5 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT 13.07.2011, opined that it does not have any objection if N.A. Permission, as sought for, is granted in favour of the petitioners. Since the earlier application preferred by the petitioners was rejected for noncompliance of certain documents, the petitioners made another application dated 15.11.2011 to the second respondent, wherein it was stated that the predecessorsininterest of the petitioners were holding the lands by way of succession, ever since the years 194142, and the land was of old tenure. It is the case of the petitioners that the second respondent, without granting the petitioners an opportunity of hearing, passed the impugned orders dated 21.03.2012, rejecting the application preferred by the petitioners for the grant of N.A.Permission, on the ground that the land was originally granted by virtue of the order passed by the Mamlatdar in the year 1971 and appears to be of new tenure. According to the second respondent, premium is leviable while granting N.A. Permission.
5. At this juncture, it would be profitable to Page 6 of 183 HC-NIC Page 6 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT delve a little deeper into the factual and legal background which is, in essence, at the core of the petitions and is vital for the determination of the issues raised in them. With this end in mind, it would be necessary to refer to the relevant statute as well, which is the Bombay Merged Territories (Ankadia Tenure Abolition) Act, 1953 (hereinafter referred to interchangeably as "the Act" or "the Ankadia Tenure Abolition Act" for short). An indepth analysis of the relevant provisions of the Act and their effect would be done later on. At this stage, it would suffice to indicate the purport of the Act. The Ankadia Tenure Abolition Act specifically refers to the merged territories of the former States of Baroda, Idar, Balasinor, Malpur, Amhaliara, Lunawada, and Deogadh Baria and of the former estate of Ramas. By this Act, the rights appertaining thereto stood extinguished and consequential and incidental matters were provided for, as stated in the Act. In the present group of petitions, we are concerned only with the State of Baroda, more Page 7 of 183 HC-NIC Page 7 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT particularly, Village Sherkhi in the erstwhile State of Baroda, which was admittedly covered by the abovementioned Act. The Thakore of the village was the Ankadedar within the meaning of Section 2(1)(a) of the Act, meaning thereby, a person holding an Ankadia village on Ankadia tenure which includes his cosharer. Upon abolition of the Ankadia Tenure, as per Section 3(iii) of the Act all the leases or agreements under which the Ankadia villages specified in the second schedule were held immediately before coming into force of the Act were deemed to have been cancelled. As per Section 3(iv), all the Ankadia villages were resumed and all lands in such villages were liable to the payment of land revenue in accordance with the provisions of the Bombay Land Revenue Code, 1879 ("the Code") and the Rules made thereunder. As per Section 4(1) (A)(iii) of the Act, in the case of land held by a person who immediately before the coming into force of the Act was liable to pay to the Ankadedar land revenue or rent in respect of such land as an incident of Ankadia tenure, such Page 8 of 183 HC-NIC Page 8 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT person would primarily be liable to the State Government for the payment of land revenue due in respect of such land and be entitled to all the rights and liable to all the obligations in respect of such land as an occupant under the Code or any other law for the time being in force. The Act came into force on 15.08.1953, from which date the Ankadia tenure came to be abolished and the incidents and consequences of such abolition, as laid down in the Act, came into force. It emerges from the record that after the abolition of Ankadia tenure, the Ankadedar Shri Bhagwansinhji Chhatrasinhji and the occupants of the lands of village Sherkhi, entered into voluminous correspondence with the authorities of the then State Government. The record produced before this Court is the original record produced before the Mamlatdar and ALT during the proceedings which took place in the year 1971. As per the said record, the last revenue entry, which is Entry No.691 pertaining to the land in question, records that the name the of Thakore (Ankadedar) as "superior Page 9 of 183 HC-NIC Page 9 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT holder" of the land has been removed. Thus, the effect of the abolition of the Ankadia Tenure was recorded. The revenue record shows the name of the Thakore (Ankadedar) in respect of the land in question and the land is described as "Gharkhed of Darbar". It appears from the record that there was some litigation before the revenue authorities at the behest of the Thakore and the occupants of the land in question, regarding their claims over the land upon the repeal of the Act. The erstwhile Ankadedar and the occupants of the land, including the predecessorsininterest of the petitioners, approached the Chief Minister with an application for the settlement of their claims pursuant to the abolition of the Ankadia tenure. The application was forwarded by the Chief Minister's office to the Collector. By a letter dated 31.03.1970, the Collector directed the Mamlatdar to hold a complete inquiry and send the report to him. Pursuant thereto, the Mamlatdar conducted a thorough inquiry. He instructed the Talati to issue notices to all Page 10 of 183 HC-NIC Page 10 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT the nineteen occupants of the land. The statements of all the occupants, including that of the Thakore, were recorded, and are on record. The statement of the Talati of Sherkhi village was also recorded. On the basis of the voluminous evidence, the Mamlatdar passed a final order dated 05.05.1971. This order is directly relevant to the issues arising in these petitions. By the said order dated 05.05.1971, the Mamlatdar, Vadodara, has held that Village Sherkhi was an Ankadia village and after the abolition of Ankadia tenure with the coming into force of the Act on 15.08.1953, village Sherkhi came under the administration of the State Government. The said order meticulously records all survey numbers of the said village, including the survey numbers of the subject lands and after taking into consideration the entire revenue records and the statements of witnesses, the Mamlatdar holds that the said survey numbers were under the administration of the Ankadedar and were being cultivated by the occupants who used to give a share of the crop Page 11 of 183 HC-NIC Page 11 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT to the Ankadedar, who maintained accounts. The accounts maintained by the Ankadedar were also produced and scrutinised. The Mamlatdar observed in the said order, that the land has been cultivated by the occupants from generation to generation and the possession of the occupants over the land in question is not illegal. The Mamlatdar further held, after examining the entire record, that the subject lands were in the possession of the occupants, who were entitled to occupancy rights without paying any occupancy charges, as per Section 4(1) of the Act. However, as they were not granted their just entitlements under the Act, they had approached the State Government, as a result of which, the inquiry took place. The Mamlatdar found that the occupants were regularly cultivating the land in question and as a result of the above findings, the Mamlatdar held the persons occupying the lands to be the lawful occupants of the lands in question upon the abolition of the Ankadia tenure, with no restrictions or conditions attached to the land Page 12 of 183 HC-NIC Page 12 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT which was treated as of old tenure.
6. The effect of the order of the Mamlatdar was given in the revenue record and when the present petitioners purchased the land through registered Sale Deeds, there was no restriction with regard to the land which was reflected to be of old tenure in the revenue record.
7. After making the application dated 01.10.2010, for the grant of N.A.Permission in the prescribed format the petitioners, by way of another communication dated 15.11.2011 addressed to the second respondent explained, in detail, that the predecessorsininterest of the petitioners were holding the land by way of succession ever since 194142 and the land belonged to the erstwhile Ankadedar of village Sherkhi, who had allotted the land to the predecessorsininterest of the petitioners for cultivation. It was submitted by the petitioners that the lands are of old tenure and no condition is attached to them, therefore, the petitioners are entitled to, and may be, granted Page 13 of 183 HC-NIC Page 13 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT N.A.Permission.
8. The grievance of the petitioners is that the second respondent, without granting an opportunity of hearing to them, rejected their applications for N.A.Permission by the impugned order dated 21.03.2012, on the ground that the land had been "granted" to the petitioners by virtue of the order dated 05.05.1971 passed by the Mamlatdar and is of new tenure, therefore, premium is leviable upon the grant of N.A.Permission. Being aggrieved by the above orders passed by the second respondent the petitioners have filed the first set of petitions.
9. Though it is specifically the case of the petitioners that the subject lands are not of new tenure as they were never granted but were always under the occupation of the occupants and by virtue of the abolition of Ankadia tenure and in terms of the provisions of the said Act no premium was leviable thereupon, in order to cut the matter short and without prejudice to their Page 14 of 183 HC-NIC Page 14 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT rights and contentions, the petitioners offered to pay premium during the pendency of the first set of petitions.
10. The petitioners, therefore, filed Civil Applications (For Direction) Nos.1981/2013 to 1984/2013, inter alia, praying that they may be permitted to deposit the amount of premium as demanded/ ascertained by the second respondent for the grant of N.A.Permission without prejudice to the rights and contentions of both the parties and subject to the final outcome of the petitions. By an order dated 29.07.2013, this Court (Coram: Harsha Devani, J.), allowed the applications and directed the second respondent District Collector, Vadodara, to fix the quantum of premium of the subject lands upon applications being made by the petitioners, within a period of two months from the date of the receipt of the applications. It was further directed that upon deposit of the amount of premium as may be determined by the appropriate authority, the objections raised by the second respondent Collector in his order dated Page 15 of 183 HC-NIC Page 15 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT 21.03.2012, whereby he has rejected the applications seeking N.A. Permission by holding that the subject lands are of new tenure and premium is liable to be recovered, would no longer survive. This Court further directed the Collector, Vadodara, to grant N.A.Permission within a period of four weeks thereafter, in accordance with law, subject to the final outcome of the petitions. The respondent State Government filed Letters Patent Appeals against this order. The Division Bench, vide order dated 17.06.2014, stayed the order dated 29.07.2013, of this Court. Against the said order of the Division Bench, the petitioners filed Petitions for Special Leave to Appeal, being SLP (C) Nos.2855428557/2014. By an order dated 07.11.2014, the petitioners withdrew the said SLPs with liberty to approach the Division Bench with an application for review/ modification of the impugned order. Thereafter, review petitions, being Miscellaneous Civil Application No.3314/2014 and allied matters, came to be filed before the Division Bench by the Page 16 of 183 HC-NIC Page 16 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT petitioners, which were disposed of by an order dated 20.02.2015.
11. In the meanwhile, the second respondent issued showcause notices to the petitioners. As the authorities were going ahead with the proceedings arising from the showcause notices, the petitioners preferred Civil Application No.8423/2015 and allied matters before the Division Bench, with a prayer to restrain the second respondent from passing any further orders. By an order dated 31.07.2015, the Division Bench restrained the second respondent
- District Collector from passing any further orders in the proceedings initiated by way of the showcause notices issued under the provisions of Section 211 of the Code. It appears that the State Government filed Civil Applications for vacation of the interim relief granted by the Division Bench. The said Civil Applications were disposed of by an order dated 28.09.2015.
12. After hearing the parties in the appeals, the Page 17 of 183 HC-NIC Page 17 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Division Bench quashed and set aside the order dated 29.07.2013 passed by this Court in Civil Applications Nos.1981/2013 to 1984/2013, and remitted the matters to this Court for fresh adjudication as expeditiously as possible so that the issues involved in the subject group of matters could be finally decided. The appeals were allowed to the aforesaid extent only.
13. As noticed earlier, during the pendency of the Letters Patent Appeals, the second respondent issued showcause notices dated 05.03.2015, in exercise of power under Section 211 of the Code, stating therein that the order dated 05.05.1971, passed by the Mamlatdar is defective as it is beyond his powers and jurisdiction. The petitioners were directed to remain present at the designated time and place in person or through authorised representatives to make their submissions. The petitioners preferred the second set of petitions against these showcause notices issued by the second respondent. As the second set of petitions had been filed during the pendency of the appeals, the Division Bench Page 18 of 183 HC-NIC Page 18 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT directed that they be heard with the other petitions that were remanded and the issues involved in all the petitions be decided conclusively. It is in this factual background that the petitions are placed for determination before this Court.
14. Mr.Mihir J. Thakore, learned Senior Advocate has appeared with Mr.Vimal A. Purohit, learned advocate for the petitioners in both sets of petitions and addressed elaborate and detailed submissions. Mr.Prakash K. Jani, learned Additional Advocate General has appeared for the respondent State Government and has addressed the Court at great length. The gist of the submissions of learned counsel for the respective parties is as recorded below. Submissions on behalf of the petitioners regarding refusal of the N.A.Permission:
15. Learned Senior Counsel for the petitioners has taken the Court through the provisions of the Ankadia Tenure Abolition Act. He has referred to the Preamble which reads as below:
Page 19 of 183
HC-NIC Page 19 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT "Whereas it is expedient to abolish the Ankadia tenure prevailing in the merged territories of the former States of Baroda, Idar, Balasinor, Malpur, Amhaliara, Lunawada and Deogadh Baria and of the former estate of Ramas, to extinguish the rights appertaining thereto and to provide for other consequential and incidental matters hereinafter appearing; it is hereby enacted ...."
16. The Act came into force on 15.08.1953. Learned Senior Counsel has further referred to the definitions contained in Section 2 of the Act. Section 2(1)(a) defines "Ankadedar" as a person holding an Ankadia village on Ankadia tenure and includes his cosharer. Clause (b) of Section 2(1) defines "Ankadia tenure" to mean the tenure on which a village is held by an Ankadedar Section 2(1)(c) defines "Ankadia Villages" to mean the villages specified in the First and Second Schedules. Learned Senior Counsel for the petitioners has referred to the first Schedule under Section 2(1)(c) of the Act wherein the Ankadia villages in the merged territories of the former States of Baroda have been mentioned. Page 20 of 183 HC-NIC Page 20 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Village Sherkhi, in which the subject lands are situated, is at Item No.14 of the First Schedule. Learned Senior Counsel contends that this conclusively proves that Village Sherkhi was an Ankadia Village. Section 2(1)(d) defines "Ankado" to mean a lumpsum payable annually to the Government by an Ankadedar out of the revenues realized by him annually from an Ankadia village. "Gharkhed land" has been defined in Section 2(1)(g) as the land held by an Ankadedar as his private or personal property. As per Section 2(1)(h), "Jiwai land"
means a land held by a cadet of an Ankadedar's family for the purpose of maintenance. Reference to the Code in Section 2(1)(e) pertains to Bombay Land Revenue Code, 1879 (Bombay V of 1879).
17. Learned Senior Counsel for the petitioners has drawn the attention of the Court to Section 3 of the Act which deals with the abolition of Ankadia tenure and reads as below:
3. Abolition of Ankadia tenure: With Page 21 of 183 HC-NIC Page 21 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT effect from and on the date on which this Act comes into force -
(i) the Ankadia tenure, wherever it prevails in the territory to which this act extends shall be deemed to have been abolished;
(ii) save as expressly provided by this Act all the incidents of the said tenure shall be deemed to have been extinguished;
(iii) all the leases or agreements under which the Ankadia villages specified in the Second Schedule were held immediately before the coming into force of this Act shall be deemed to have been cancelled;
(iv) all the Ankadia villages are hereby resumed and all lands in such villages shall be liable to the payment of land revenue in accordance with the provisions of the Code and the rules made thereunder.
Provided that nothing in clause (iv) shall be deemed to affect,
(a) devasthan inam or inams held by religious or charitable institutions; and
(b) inams held for service useful to Government:
Page 22 of 183
HC-NIC Page 22 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Provided further that nothing in this section shall affect the payment of maintenance allowance to a widow of a deceased Ankadedar sanctioned by the State Government under the provisions of the Baroda Ankadia Villages Rules of 1932."
(emphasis supplied)
18. Reference has further been made to Section 4 of the Act, on which heavy reliance is placed, which is reproduced as under:
"4. Persons to be deemed as occupants: (1) (A) In an Ankadia village specified in the First Schedule,
(i) in the case of Gharkhed land held by an Ankadedar, the Ankadedar,
(ii) in the case of Jiwai land subject to the provisions of Section 4A, the person holding such land,
(iii) in the case of land held by a person who immediately before the coming into force of this Act was liable to pay to the Ankadedar land revenue or rent in respect of such land as an incident of Ankadia tenure, such person, and (B) In an Ankadia village specified in the Page 23 of 183 HC-NIC Page 23 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Second Schedule
(i) in the case of Gharkhed land held by an Ankadedar, the Ankadedar, and
(ii) in the case of land held by a person whose name has been immediately before the commencement of the Act, entered in the record of rights as occupier Kabjedar of such land and who was liable to pay to the Ankadedar land revenue in respect of such land as an incident of Ankadia tenure, such person, shall be primarily liable to the State Government for the payment of land revenue due in respect of such land and shall be entitled to all the rights and shall be liable to all the obligations in respect of such land as an occupant under the Code or any other law for the time being in force.
(2) With effect from the date on which this Act comes into force, the land in respect of which any person is entitled to the rights of an occupant under subsection (1) shall be free from the liability for the payment of any amount in respect thereof to the Ankadedar as an incident of Ankadia tenure and all the rights of an Ankadedar in his capacity as an Ankadedar in such land shall be deemed to have been extinguished."Page 24 of 183
HC-NIC Page 24 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT (emphasis supplied)
19. It is submitted that upon the abolition of Ankadia tenure, all Ankadia villages stand resumed by the Government and all the occupants in such villages who were cultivating lands and were paying land revenue or rent to the Ankadedar prior to coming into force of the Act as an incident of Ankadia tenure were liable to pay land revenue to the State Government in accordance with the provisions of the Code and the Rules made thereunder. There is no restriction of any kind attached to the said lands and neither are the lands granted by the Government to the occupants, as is being made out by the second respondent. This flows as an automatic result of the coming into force of the statute and there is no grant of any nature involved.
20. Learned Senior Counsel has laid great stress upon the provisions of Section 4 of the Act which provide that the persons occupying the lands would be deemed to be the occupants thereof in the Ankadia villages specified in the Page 25 of 183 HC-NIC Page 25 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT First Schedule, in which village Sherkhi is also included. It is submitted that as per Section 4(1)(A)(iii), in the case of land held by a person whose name has been entered in the Record of Rights as an occupier of such land immediately before the commencement of the Act and who was liable to pay to the Ankadedar land revenue in respect of such land as an incident of Ankadia tenure, such person after the coming in force of the Act, shall be primarily liable to the State Government for the payment of land revenue due in respect of such land. Further, he shall also be entitled to all the rights and be liable to all the obligations in respect of such land as an occupant under the Code or any other law for the time being in force.
21. It is submitted that as per Section 4(2), the land in respect of which any person is entitled to rights as an occupant under subsection (1) of Section 4 of the Act stands freed from all liabilities towards payment of any amount in respect thereto to the Ankadedar as an incident of Ankadia tenure and all the rights of the Page 26 of 183 HC-NIC Page 26 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Ankadedar in his capacity as Ankadedar in such land shall be deemed to have been extinguished. Meaning thereby, that the relationship of the occupant with the Ankadedar ends and such occupant is directly liable to pay the land revenue to the State Government in respect of the land held by him. It is submitted that there is voluminous evidence on record to indicate that the names of the predecessorsininterest of the petitioners were entered in the Record of Rights as occupants of the lands in question, therefore, on the coming into force of the Act, such occupants were vested with all the rights and obligations of an occupant under the Code, with liability to pay land revenue to the State Government. That the present petitioners have purchased the land from such occupants who had unrestricted occupancy rights and held the land as old tenure. There is nothing in the Scheme of the Act that indicates that the land was `granted' or it was ever termed as "new tenure"
land with restrictions upon transferability or partibility.Page 27 of 183
HC-NIC Page 27 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT
22. Learned Senior Counsel for the petitioners has further referred to Section 73 of the Code which reads as below:
"73. Occupancy to be transferable and heritable: An occupancy shall, subject to the provisions contained in section 56, and to any conditions lawfully annexed to the tenure, and save as otherwise prescribed by law, be deemed an heritable and transferable property."
On the basis of this provision, it is submitted that the occupancy of an occupant is transferable and heritable and in the present case, there are no restrictions attached to the occupancy of the petitioners over the land in question. The land is deemed heritable and transferable, therefore no liability to pay premium accrues upon the petitioners for the grant of N.A.Permission.
23. It is submitted that the order dated 05.05.1971 passed by the Mamlatdar does not speak of any `grant' of land. Only when the land is granted to the occupant by the State Government does the Page 28 of 183 HC-NIC Page 28 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT question of new tenure come in. In the present case, by the coming into force of the Act, the relationship of the occupants with the Ankadedar stood extinguished and a direct relationship of the occupants with the State Government commenced, in which the only obligation is to pay land revenue. The order of the Mamlatdar categorically states that the predecessorsin interest of the petitioners are occupants of the land and are entitled to be granted occupancy rights. Nowhere in the said order has it been stated that the land has been "granted" to them or that the land is of new tenure. Even in the extracts of Village Form No.7/12, the land is specifically shown to be of old tenure.
24. Learned Senior Counsel has next referred to the provisions of Section 5 of the Act which read as below:
"5. Uncultivated and waste lands and all property of the nature specified in Section 37 of the Code vests in Government For the removal of doubt, it is hereby declared that all uncultivated and waste lands whether Page 29 of 183 HC-NIC Page 29 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT assessed or unassessed in an Ankadia village and all other kinds of property referred to in Section 37 of the Code situate in an Ankadia village, which are not the property of the individuals or of any aggregate persons legally capable of holding property and except in so far as any rights of such persons may be established in or over the same and except as may be otherwise provided in any law for the time being in force are together with all rights in and over the same or appertaining thereto, the property of the State Government and it shall be lawful to dispose of or set apart the same by the authority and for the purpose provided in Sections 87 or 88 of the Code, as the case may be."
25. In reference to the above provision, it is submitted that it is only unoccupied land of the nature described in Section 5 that would go to the State Government. The provision speaks of uncultivated or waste land, whereas the lands in question were under active cultivation, as is clear from the Pahni Patrak and extracts of Form No.7/12. Section 5, therefore, is not applicable to the lands in question. The State Government cannot claim lands that are not covered under Page 30 of 183 HC-NIC Page 30 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Section 5. To say, at this stage, that the land belongs to the State Government, is impermissible.
26. It is clarified by learned Senior Counsel that only one piece of land pertaining to a part of Survey No.556/18 remained uncultivated. This portion went to the Forest Department and the rest was in the possession and occupation of the persons who were cultivating it. As cultivated land does not fall under the provisions of Section 5, the State Government cannot claim such land as per the stand now being set up in the affidavitinreply filed by the second respondent.
27. It is submitted that as per Section 68 of the Code, the rights of occupants are conditional if the tenure is limited and conditions are imposed. However, in the present case, this provision does not apply as neither is the tenure limited nor are any conditions imposed by Sections 3 and 4 of the Act. Referring to Section 37(1) of the Code, it is submitted that Page 31 of 183 HC-NIC Page 31 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT the Collector is entitled to dispose of the property or grant land described in the said provision, with certain conditions. This type of land would include the land mentioned in Section 5 of the Act. Further, Section 37(1) would also not be of any relevance in the present case as the land squarely falls under Section 4(2) of the Act, therefore, the question of grant of land with conditions attached does not arise.
28. It is further submitted that there are certain statutes such as the Bombay Service Inams (Useful to Community) Abolition Act, 1953, that provide for restricted tenure and the person concerned has to pay an occupancy price such as provided in Section 5(3) of the Inams Abolition Act. In that case, the land is regranted under subsection (2) of Section 5 and is held not to be transferable or partible without the previous sanction of the Collector except on payment of such amount as the State Government may determine. In the present petitions, such is not the case as there is no restriction, whatsoever, on the tenure of the land or on the Page 32 of 183 HC-NIC Page 32 of 183 Created On Sat May 06 00:24:32 IST 2017 C/SCA/4971/2012 CAV JUDGMENT transferability or partibility thereof. In short, it is submitted that there is no basis for the conclusion arrived at by the second respondent in the impugned orders that the land is of new tenure and is subject to the payment of premium.
29. It is further elaborated by learned Senior Counsel for the petitioners that nowhere in the revenue record has it been stated that the land is of new tenure. On the contrary, the records describe the land as old tenure. The impugned order passed by the Collector, therefore, is ex facie wrong and erroneous. The ground taken by the Collector in the impugned order that the land has been `granted' by the Mamlatdar by the order dated 05.05.1971, is incorrect and contrary to the record.
30. Learned Senior Counsel has taken the Court through the voluminous record which contains several communications and extracts of the revenue record produced before the Mamlatdar in the proceedings held in the year 1971. He has Page 33 of 183 HC-NIC Page 33 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT submitted that consistently, the Pahni Patrak maintained by the Thakore (Ankadedar) from 1947 48 in respect of the subject lands shows the names of the cultivators and describes the land as "Gharkhed of Darbar". It is submitted that by the impugned order, the second respondent held that the subject lands are of new tenure and liable for the payment of premium. However, when the petitioners showed their willingness to pay premium during the pendency of the petition without prejudice to their rights and contentions, the State Government again changed its stand. In the affidavitinreply filed by the second respondent, a new stand is taken that the subject lands are Government lands. This is on the purported premise of Section 5 of the Act, therefore, according to the second respondent, the order of the Mamlatdar dated 05.05.1971, is wrong. In support of this contention, the State Government has produced the record of 1908 along with the affidavitin reply, consisting of the Field Book, Prati Book, Faisal Patrak and Aakar Bandh, all of which are Page 34 of 183 HC-NIC Page 34 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT maintained for the purpose of Survey Settlement and are not revenue records showing the rights of parties. Learned Senior Counsel has referred to the Bombay Survey and Settlement Manual in which all these documents have been mentioned, in support of the submission that such survey documents do not reflect the rights of parties as maintained in the revenue record.
31. It is further submitted that there were no Ankadia villages before 1932 when the Baroda Ankadia Village Rules of 1932 came into force. The record produced by the State Government prior to 1932, therefore, cannot be of any relevance as it does not pertain to the rights and entitlements of the occupants of the subject lands at the time of the abolition of the Ankadia tenure by the Act.
32. It is submitted that vide Government Resolution dated 01.03.1960, all Collectors were directed to prepare complete lists of Government lands for disposal. A list was prepared pursuant to this Government Resolution (Page 767). The said Page 35 of 183 HC-NIC Page 35 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT list does not mention village Sherkhi. It is therefore clear that the lands of village Sherkhi were not included in the lands of the State Government, and were never treated as Government lands.
33. Regarding the affidavitinreply filed by the State Government, learned Senior Counsel for the petitioners has submitted that the impugned orders state that the land is of new tenure subject to payment of premium, whereas a totally different stand has been taken in the affidavit inreply, to the effect that the lands are Government lands. Such a change in the stand of the State Government by way of an affidavit cannot be permitted during the pendency of the proceedings and the affidavitinreply cannot be taken into consideration.
34. In support of these submissions, reliance has been placed upon a judgment of the Supreme Court in the case of Dipak Babaria & Anr. v. State of Gujarat & Ors. (2014)3 SCC 502.
"64. That apart, it has to be examined Page 36 of 183 HC-NIC Page 36 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT whether the Government had given sufficient reasons for the order it passed, at the time of passing such order. The Government must defend its action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits as laid down by this Court long back in Commissioner of Police, Bombay vs. Gordhandas Bhanji (AIR 1952 SC 16) in the following words: "9. ...Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
This proposition has been quoted with approval in para 8 by a Constitution Bench in Mohinder Singh Gill vs. Chief Election Commissioner (1978)1 SCC 405 wherein Krishna Iyer, J., has stated as follows: "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.
Page 37 of 183 HC-NIC Page 37 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."
65. In this context it must be noted that the Revenue Minister's direction merely states that it is a private land, and the Governments letter dated 18.12.2009 speaks of the financial incapability of Indigold. Neither the letter dated 18.12.2009 from the Government to the Collector, nor the order passed by the Deputy Collector on 15.1.2010 mention anything about:
1. The mineral policy of the Government of Gujarat.
2. The time taking nature of the process of acquiring the land and reallotting it.
3. That the second sale was under the authority of the Collector available to him under the first proviso to Section 89(1) read with Condition (4) of the permission dated 1.5.2003 granted to Indigold to purchase the concerned lands.
In the absence of any of these factors being mentioned in the previous orders, it is clear that they are being pressed into service as an afterthought. The Government can not be allowed to improve its stand in such a manner with the aid of affidavits."
(emphasis supplied) Page 38 of 183 HC-NIC Page 38 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT
35. It is submitted that the applicants approached the State Government vide a letter dated 31.03.1970. The State Government directed the Collector to find out whether the said applicants were occupants of the land in question. In turn, the Collector directed the Mamlatdar to verify this aspect, which has resulted in the passing of the order dated 05.05.1971. The said order is a result of an inquiry which revealed that the applicants who had approached the State Government were cultivating the land prior to the coming into force of the Act and were paying land revenue and rent in respect of the land to the Ankadedar as an incident of Ankadia tenure. The record further reveals that there were lease agreements between the Ankadedar and the said applicants and Books of Accounts were produced before the Mamlatdar. The moment these two conditions are fulfilled, as per the provisions of Section 4(1)(A)(iii) of the Act, such persons would be entitled to be declared as occupants by the sheer operation of law, without passing of Page 39 of 183 HC-NIC Page 39 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT any order.
36. Learned Senior Counsel has further referred to Revenue Entry No.801 mutated in the year 1956, which is available on the record and reflects that the name of the Thakore (Ankadedar) was deleted by giving effect to the Act. This entry was confirmed in the year 1962 and covers all the lands of village Sherkhi. This clearly shows that the effect of the Act was given in the year 1962, therefore, for the State Government to say at this stage that the land belongs to it, is highly untenable and contrary to the record. Submissions on behalf of the petitioners in the second set of petitions challenging the showcause notices:
37. Regarding the challenge to the showcause notices raised by the petitioners in the second set of petitions, learned Senior Counsel has submitted that the order of the Mamlatdar was passed on 05.05.1971 and the showcause notices were issued after fortyfour years, on 05.03.2015. Thus, under no circumstances can this be said to be a reasonable period of time Page 40 of 183 HC-NIC Page 40 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT in order to take into revision the order of the Mamlatdar under Section 211 of the Code. That, it is not a case where the respondents were unaware of the passing of the order of the Mamlatdar. On the contrary, they were in full knowledge of the said order and an entry with regard to this order is mutated in the revenue record and also certified. Thereafter, four Promulgations have taken place. There has been voluminous correspondence regarding this order. There is no explanation, whatsoever, for the gross delay of fortyfour years in taking the order in revision. It is not the case of the respondents that the order of the Mamlatdar is a fraudulent, concocted or forged one and no period of limitation will apply. Even when there is an allegation of fraud, the order is required to be challenged within a reasonable period of time. The delay of fortyfour years in exercise of suo motu powers is, therefore, fatal, as has been held by the Supreme Court and this Court in a catena of judgments. Hence, the showcause notices deserve to be quashed and set aside on Page 41 of 183 HC-NIC Page 41 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT this ground alone.
38. Referring to the impugned showcause notices, it is submitted that the Collector has found the order of the Mamlatdar defective on three grounds, as stated in the showcause notices. However, no reasons have been mentioned in support of these grounds. The first ground is that the said order is beyond the jurisdiction and powers of the Mamlatdar. The second ground is that the said order has been passed without conducting a proper inquiry. The third ground is that irregular and illegal sale transactions have been conducted in respect of the land in question. It is submitted that the ground that the order dated 05.05.1971 of the Mamlatdar is without jurisdiction, is incorrect. As has been stated earlier, in the year 196263, the applicants, who are the predecessorsininterest of the petitioners and occupants of the land in question, had approached the State Government stating that they were cultivating the said land for several years and paying `Saanth' (share of revenue) and `Daan' (crop share) to the Page 42 of 183 HC-NIC Page 42 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Ankadedar. On the coming into force of the Act, they were entitled to be declared as occupants of the land in question, which entitlement has not been granted to them. The State Government forwarded the application to the Collector and directed him to look into the matter and the Collector, in turn, directed the Mamlatdar to verify this aspect and report to him. It is submitted that the Mamlatdar merely conducted an inquiry but did not adjudicate any matter, as Section 4 of the Act does not contemplate the rendering of any decision by any authority, including the Prant Officer. It only says the effect of Section 4 is that the Ankadedar will be entitled to Gharkhed land. The Jiwaidar would be entitled to Jiwai land and the occupants or tenants of any other kind of land other than Jiwai or Gharkhed land would become the occupants of the said land without payment of land revenue, upon coming into force of the Act. No adjudication is required under the said provision, therefore, to say that the Mamlatdar has decided any issue under this provision or Page 43 of 183 HC-NIC Page 43 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT that the order dated 05.05.1971 is a decision under the Act, regarding which he does not have jurisdiction, is incorrect.
39. It is contended that the Act would operate on its own without any decision from the Mamlatdar, Collector or even the Prant Officer. It is submitted that the Notification dated 16.05.1961 confers power upon the Prant Officer to perform the functions and exercise powers of the Collector within their respective jurisdictions, under the Act. Section 6 of the Act pertains to the method of compensation for extinguishment or modification of the rights of Ankadedars. Under this provision, if an Ankadedar is aggrieved, he may apply to the Collector for compensation. Similarly, Section 7 is regarding method of compensation for extinguishment or modification of rights and provides that if any person other than the Ankadedar is aggrieved by any of the provisions of the Act extinguishing or modifying any of his rights, and if such person proves that such extinguishment or modification amounts to the transfer of ownership or his right over Page 44 of 183 HC-NIC Page 44 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT such land to public ownership, he can apply to the Collector for compensation. It is submitted that the role of the Collector under the Act is confined only to these two sections and not to Section 4, therefore, the Notification appointing the Prant Officer to perform the duties of the Collector does not apply to Section 4.
40. It is further submitted that the second Notification dated 16.10.1969, pertains to sub section (4) of Section 2 and not to subsection (4) of Section 4, as Section 4 has no sub section numbered four. Subsection (4) of Section 2 stipulates that if any question arises as to whether any land is Gharkhed or Jiwai, the State Government or an officer authorised by the State Government in this behalf shall decide the question; but where an officer authorised by the State Government so decides, the State Government may call for the record of the enquiry proceedings of such officer for the purpose of satisfying itself as to the legality, propriety or regularity of such enquiry or Page 45 of 183 HC-NIC Page 45 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT proceedings and pass such order thereon as it may think fit. It is contended that the Prant Officer has been authorised under subsection (4) of Section 2 of the Act, therefore, it cannot be said that it was the Prant Officer who could have passed an order under Section 4 of the Act and determined the issue under this Section as the said Section does not call for any adjudication or determination at all.
41. It is submitted that the order dated 05.05.1971 of the Mamlatdar is a result of a thorough inquiry conducted by him pursuant to the direction of the Collector who was, in turn, directed by the State Government. While passing this order, the Mamlatdar has verified the voluminous record as well as taken necessary evidence to find out whether the predecessors of the petitioners were paying rent or land revenue to the Ankadedar and were cultivating the land. This order is not an order under Section 4 of the Act, or any other provision of the Act. It is only a result of a factfinding inquiry. The moment it is found that the predecessors of the Page 46 of 183 HC-NIC Page 46 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT applicants were paying rent and land revenue to the Ankadedar and were cultivating the land prior to the coming into force of the Act, the provisions of Section 4 would immediately operate and the holders and cultivators of the land would become occupants of the lands in question.
42. It is submitted that in this view of the matter, the order of the Mamlatdar cannot be said to be without jurisdiction. It, therefore, follows that the said order cannot be challenged after a gross delay of fortyfour years without any explanation.
43. Another relevant aspect is that the inquiry conducted by the Mamlatdar is not an inquiry under any provision of the Code. Hence, it follows that the order of the Mamlatdar cannot be the subject matter of revision under Section 211 of the Code. Therefore, the impugned show cause notice, itself, is without jurisdiction.
44. That power under the Code cannot be exercised to call into question an inquiry in respect of the Page 47 of 183 HC-NIC Page 47 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT effect of the Ankadia Tenure Abolition Act.
45. In support of the above submissions, reliance has been placed upon the judgments, as referred to hereinbelow:
(i) In Mohamad Kavi Mohamad Amin v.
Fatmabai Ibrahim (1997)6 SCC 71, it is held as below:
"2. Although Mr. Bhasme, learned counsel appearing for the appellant took a stand that under Section 63 of the Act aforesaid, there should not be any discrimination amongst the agriculturists with reference to the State to which such agriculturist belongs. But according to him even without going into that question the impugned order can be set aside on the ground that suo motu power has not been exercised within a reasonable time. Section 84C of the Act does not prescribe any time for initiation of the proceeding But in view of the settled position by several judgments of this court that wherever a power is vested in a statutory authority without prescribing any timelimit, such power should be exercised within a reasonable time. In the present case the transfer took place as early as in Page 48 of 183 HC-NIC Page 48 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT the year 1972 and suo motu enquiry was started by the Mamlatdar in September 1973. If sale deeds are declared to be invalid the appellant is likely to suffer irreparable injury, because he has made investments after the aforesaid purchase. In this connection, on behalf of the appellant reliance was placed on a judgment of Justice S. B. Majmudar (as he then was in the High court of Gujarat) in State of Gujarat v. Jethmal Bhagwandas Shah disposed of on 1.3.1990, where in connection with Section 84C itself it was said that the power under the aforesaid section should be exercised within a reasonable time. This Court in connection with other statutory provisions, in the case of State of Gujarat v. Patil Raghav Natha and in the case of Ram Chand v. Union of India has impressed that where no timelimit is prescribed for exercise of a power under a statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time. We are satisfied that in the facts and circumstances of the present case, the suo motu power under Section 84C of the Act was not exercised by the Mamlatdar within a reasonable time. Accordingly, the appeal is allowed. The impugned orders are set aside. No costs."Page 49 of 183
HC-NIC Page 49 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT (emphasis supplied) It is submitted that though this judgment is regarding the exercise of power under Section 84C of the Gujarat Tenancy and Agricultural Lands Act, 1948 ("the Tenancy Act"), however, the same principles of law with regard to delay would be applicable in the present case.
(ii) In Chandulal Gordhandas Ranodriya And Others v. State of Gujarat And Ors. 2013(2) GLR 1788, a Division Bench of this Court has discussed, at length, the concept of "reasonable period of time", and after noticing the law in this regard, arrived at the following conclusion:
"19. It must be fairly said that if the statute does not prescribe time limit for exercise of revisional powers, it does not mean that such powers can be exercised at any point of time even if there is a breach of Section 43 of the Act, which is a provision which relates to a new tenure land, rather it should be exercised within a reasonable period of time. It is so because the law does not expect a settled Page 50 of 183 HC-NIC Page 50 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT thing to be unsettled after a long lapse of time. It is clear from various judgments of the Supreme Court that where a statutory provision for exercise of any suo motu powers of revision does not prescribe any limitation, the powers must be exercised within a reasonable period of time even in the case of transaction which would be termed as void transaction.
20. Thus, so far as the first aspect of the matter is concerned, we hold that the learned Single Judge was not justified in taking the view that as the breach complained of is as regards Section 43 of the Act and as the land is a new tenure land, the powers to initiate action could be exercised at any point of time."
(emphasis supplied)
(iii) In Bharatbhai Naranbhai Vegda & Ors. v. State of Gujarat & Ors. 2016(2) GLR 1021, a Division Bench of this Court was, inter alia, examining a challenge to the showcause notice on the ground of delay. The Division Bench held:
"6. It is by now wellsettled that if the action of initiation of the showcause notice is without jurisdiction, or exfacie barred by delay, the court may entertain the Page 51 of 183 HC-NIC Page 51 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT petition under Art. 226 of the Constitution. At this stage, we may refer to the decision of the Apex Court in case of State of Punjab and ors. v. Bhatinda District Cooperative Milk Producers Union Ltd., reported at (2007)11 SCC 363, wherein the showcause notice issued in purported exercise of the revisional power came to be challenged, inter alia, on the ground that the notice was beyond the period of limitation. A question arose before the Apex Court as to whether such a question could be considered as the jurisdictional question or not. At paragraph 24, it was observed thus:
24. Question of limitation jurisdictional question, the writ petition was maintainable.
Further, at paragraph 25, it was observed thus:
25. We are, however, not oblivious of the fact that ordinarily the writ court would not entertain the writ application questioning validity of a notice only, particularly, when the writ petitioner would have an effective remedy under the Act itself. This case, however, poses a different question.
The Revisional Authority, being a creature of the statute, while exercising its revisional jurisdiction, would not be able to determine as to what would be the reasonable period for exercising the revisional jurisdiction in terms of Section 21(1) of the Act. The High Court, furthermore in its Page 52 of 183 HC-NIC Page 52 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT judgment, has referred to some binding precedents which have been operating in the field. The High Court, therefore, cannot be said to have committed any jurisdictional error in passing the impugned judgment.
(Emphasis supplied)
7. If the facts of the present case are further examined in light of the above referred legal position, two aspects may be required to be addressed. One would be the question of reasonable period for initiation of the action by issuance of the showcause notice under the Ordinance and the another is whether it could be said that the initiation of the action is without jurisdiction. The third aspect which may incidentally arise for consideration is about the locus on the part of respondent no.5 in insisting for invalidation of the transaction which has taken place between the original owner, i.e., his father and the purchaser wherein father of respondent no.5 received the consideration and by his own volition, parted with the possession, acted for transfer of the property and did not raise any grievance during his lifetime.
8. On the first aspect, for reasonable period, we may refer to some of the decisions, though of course there are number of such decisions. The first judgment on the principle delay in exercise of power came to Page 53 of 183 HC-NIC Page 53 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT be considered in the case of State of Gujarat vs. Patel Raghav Natha reported at (1969) 2 SCC 187, wherein it was held that if the revisional authority was inclined to exercise the power under the Bombay Land Revenue Code, it ought to have been satisfied that such power has been invoked within reasonable time, otherwise the bar of delay would operate. Thereafter, there are number of decisions on the said point but, we may usefully refer to the recent decision of this Court in the case of Chandulal Gordhandas Ranodriya & Ors. v. State of Gujarat reported at 2013(2) GLR 1788, wherein, this Court while considering the question of delay in initiation of action under section 84C of the Bombay Tenancy and Agricultural Lands Act, in a case where delay was about 5 years, observed at paragraph 13 as under:
13. In our opinion, it is well settled that even though void transaction if is allowed to remain effective for considerable long period, the authority named therein will be precluded from initiating proceedings to annul it. It can remain effective and in existence till it is invalidated and set aside.
If its existence is allowed for a considerable period and by a passage creating valuable rights in favour of a considerable section of people, like the appellants in the present case, it is difficult to accept the proposition that despite the change the competent authority under the Act would be Page 54 of 183 HC-NIC Page 54 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT entitled to exercise powers under Section 84(C) of the Act at any point of time.
Further, this Court in the said decision elaborately considered the question of delay and the reasonable period at paragraph 16, which reads as under:
16. In the case of Employees State Insurance Corporation v. C.C. Santhakumar reported in 2007(1) SCC 584, the Supreme Court has elaborately explained this principle of action to be taken within a reasonable period of time. It would be appropriate for us to quote paragraph Nos.35, 36, 37, 38, 39 and 40.
35. A "reasonable period" would depend upon the factual circumstances of the case concerned. There cannot be any empirical formula to determine that question. The court/authority considering the question whether the period is reasonable or not has to take into account the surrounding circumstances and relevant factors to decide that question.
36. In State of Gujarat v. Patel Raghav Natha 1969 (2) SCC 187, it was observed that when even no period of limitation was prescribed, the power is to be exercised within a reasonable time and the limit of the reasonable time must be determined by the facts of the case and the nature of the order which was sought to be varied. This aspect does not appear to have been specifically kept in Page 55 of 183 HC-NIC Page 55 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT view by the Division Bench.
Additionally, the points relating to applicability of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977, and even if it is held that the Act was applicable, the reasonableness of the time during which action should have been initiated were also not considered. It would be hard to give an exact definition of the word "reasonable". Reason varies in its conclusions according to the idiosyncrasy of the individual and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic stands now like the jingling of a child's toy. But mankind must be satisfied with the reasonableness within reach; and in cases not covered by authority, the decision of the Judge usually determines what is "reasonable" in each particular case; but frequently reasonableness "belongs to the knowledge of the law, and therefore to be decided by the courts". It was illuminatingly stated by a learned author that an attempt to give a specific meaning to the word "reasonable" is trying to count what is not a number and measure what is not space. It means prima facie in law reasonable in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know. (See: Municipal Corpn. of Delhi v.
Jagan Nath Ashok Kumar 1987 (4) SCC 497 and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. 1989(1) SCC 532. As observed by Lord Romilly, M.R. in Labouchere v. Dawson 41 LJ Ch 472 it is impossible a priori to Page 56 of 183 HC-NIC Page 56 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT state what is reasonable as such in all cases. You must have the particular facts of each case established before you can ascertain what is reasonable under the circumstances. Reasonable, being a relative term is essentially what is rational according to the dictates of reason and not excessive or immoderate on the facts and circumstances of the particular case.
37. These aspects were highlighted in Collector and Others v.
P.Mangamma, 2003(4) SCC 488.
38. As observed in Veerayee Ammal v. Seeni Ammal 2002(1) SCC 134, it is "looking at all the circumstances of the case; a "reasonable time" under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea".
39. According to Advanced law Lexicon by P. Ramanatha Aiyar 3rd Edition, 2005 reasonable time means as follows:
"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses Page 57 of 183 HC-NIC Page 57 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT that he ought not to suffer.
"Reasonable Time" is defined to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case.
If it is proper to attempt any definition of the words "reasonable time", as applied to completion of a contract, the distinction given by Chief Baron Pollock may be suggested, namely, that a "reasonable time" means as soon as circumstances will permit.
In determining what is a reasonable time or an unreasonable time, regard is to be had to the nature of the instrument, the usage or trade or business, if any, with respect to such instrument, and the fact of the particular case.
The reasonable time which a passenger is entitled to alighting from a train is such time as is usually required by passengers in getting off and on the train in safety at the particular station in question.
A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than "directly" such length of time as may fairly, and properly, and reasonably be allowed or required, Page 58 of 183 HC-NIC Page 58 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.
Reasonable time always depends on the circumstances of the case.
(Kinney) It is unreasonable for a person who has borrowed ornaments for use in a ceremony to detain them after the ceremony has been completed and the owner has demanded their return. AIR 1930 Oudh 395.
The expression "reasonable time"
means so much time as is necessary under the circumstances to do conveniently what the contract or duty requires should be done in a particular case". [See: Joseph Severance v. Benny Mathew 2005(7) SCC 667]
40. In all these cases at hand the factual aspects have not been examined, because the grievance appears to have been focused on the applicability of Section 77 (1A)
(b).
Further, at para 19, it was observed as thus
19. It must be fairly said that if the statute does not prescribe time limit for exercise of revisional powers, it does not mean that such powers can be exercised at any point of time even if there is a breach of Section 43 of the Act, which is a provision which relates to a new tenure land, rather it should be exercised within a reasonable period of time. It is so because the law does not expect a settled thing to be Page 59 of 183 HC-NIC Page 59 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT unsettled after a long lapse of time. It is clear from various judgments of the Supreme Court that where a statutory provision for exercise of any suo motu powers of revision does not prescribe any limitation, the powers must be exercised within a reasonable period of time even in the case of transaction which would be termed as void transaction.
... ... ...
20. In any case, as the notice could be said as without jurisdiction on the ground of delay and laches as per the well settled principles of law, we do not propose to express any final view on the aspect of section 75 of the Ordinance. In any case, examining the matter on the either of the situation, the action of issuance of show cause notice can be said to be without jurisdiction and hence, the petitioner would be justified in invoking the jurisdiction of this Court under Art.226 of the Constitution."
(iv) In Bhakabhai Boghabhai Bharwad And Ors. v. State of Gujarat And Ors. 2015 Lawsuit (Guj) 15, another Division Bench of this Court referred to its judgment rendered in Vallabhbhai Rambhai v. State of Gujarat Letters Patent Appeal No.422 of 2010, wherein it is held as below:
Page 60 of 183
HC-NIC Page 60 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT "5.2 As stated above, in the present case, the competent authority had initiated suomoto powers, after a period of twenty one years. The learned Single Judge has relied upon the decision passed in Special Civil Application No. 11825 of 2009 which has been set aside by the Division Bench as observed hereinabove. Even though the learned Single Judge came to the conclusion that the order passed by the competent and appellate authority holding the transaction in question as void, is in consonance with the provisions of the Ordinance, in the interest of justice and equity, it also ought not be overlooked that the impugned action in exercise of the power under section 75 of the Ordinance to summarily evict the appellants, after having allowed the transaction to remain alive for 21 years not only ignores the wide chasm between the date of transaction and the dates of the notice and the order, but also overlooks the continued possession of the appellants who had put their land to use for agricultural purpose and had not changed the status and nature of the land.
5.3 Apart from the fact that in the present case, there is a delay of about more than twenty years, the respondents are not in a position to offer any plausible Page 61 of 183 HC-NIC Page 61 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT explanation for such delay. Therefore, the learned Single Judge erred in setting aside the order passed by the Secretary (Appeals) and Collector as the authorities below could not have exercised suomoto powers, after an unreasonably long period.
Considering the facts of the case and the law laid down by this Court, in my opinion, the impugned orders deserve to be quashed and set aside."
(emphasis supplied)
(v) In Joint Collector, Rangareddy District And Anr. v. D. Narsing Rao And Ors. (2015)3 SCC 695, the Supreme Court took the following view:
"16. 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 Page 62 of 183 HC-NIC Page 62 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT 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.
... ... ...
31. 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 Page 63 of 183 HC-NIC Page 63 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT 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."
(emphasis supplied)
(vi) A similar view has been taken by this Court in Dudhiben Muljibhai Patel & Ors. v. State of Gujarat & Ors. 2016(2) GLR 1786, in the following terms:
"5. Having considered the facts and the Page 64 of 183 HC-NIC Page 64 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT contentions above, it clearly emerges that the Deputy Collector exercised the powers after a long gap of 32 years. It is cardinal principle that any statutory power vested in an authority would be required to be discharged within a reasonable time, even if no period is prescribed for such exercise. Inordinate and unreasonable delay is treated as vitiating factor itself. The principle applies with force in respect of the powers exercised or functions discharged by the revenue authorities under the revenue jurisdiction and they are not allowed to upset the action taken long back which may have resulted into vesting of rights and creation of equities with passage of time.
5.1 The aforesaid principle is underlined right from a decision of Supreme Court in State of Gujarat vs. Patel Raghav Natha, (1969) 2 SCC 187 and caravan of decisions of the Apex Court and of this Court. In Ranchodbhai Lallubhai Patel vs. State of Gujarat, 1984(2) GLR 1225 this Court disapproved the exercise of powers after long delay observing that in the meantime the affected parties would have materially altered their position and irreparable injury would be caused to them. In another decision in respect of powers exercised under the Bombay Prevention of Fragmentation Page 65 of 183 HC-NIC Page 65 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT and Consolidation of Holdings Act, 1947 the Division Bench of this Court held that the passage of 31 years in that case was too unreasonable to be countenanced shielded, observing, Even the void transaction under Sec.
9(1) if allowed to remain effective for considerably long period, the authority named therein will be precluded from initiating proceedings to annul it. Even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed to remain for a considerable period and with the passage of time it brings about several changes, creating valuable rights in favour of considerable section of people, it is difficult to accept the proposition that despite the change the Collector would be entitled to exercise power under Subsec.(3) of Sec.9 of the Act. When the things have been allowed to remain as such for years together, the purchaser cannot be deprived of his possession so as to render indirect benefit to the seller who was equally responsible for entering into such illegal transaction. When the authority had considerable opportunities to know about the transaction and despite that, has not taken any action thereon for years together, such authority cannot be allowed to exercise powers conferred upon it at a belated stage. The concept of reasonableness of time will equally apply in such cases. Therefore, even powers conferred upon the Collector under subsecs. (2) and (3) of Sec.9 are required to be exercised within a Page 66 of 183 HC-NIC Page 66 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT reasonable time. [Valjibhai Jagjivanbhai vs. State of Gujarat, 2005(2) GLH 34 : (2005(3) GLR 1852)]."
(vii) In Bharatkumar C. Jinwala v. State of Gujarat And Ors. 2015(1) GLR 576 this Court held thus:
"27. Therefore, right from the judgment in the case of Patel Raghav Natha (supra) till this judgment, the view has been consistent on this aspect and there is no justification for exercise of such powers after 5 years, particularly in background of the peculiar facts as stated above. It is also required to be noted, which has also been highlighted by learned Sr. Counsel Shri Oza referring to the conduct of the private respondents and the background, that for a small amount the recovery is sought to be made and the auction is permitted to be held for the land and even after the sale certificate is issued there is no challenge, though both the Code as well as the Gujarat Cooperative Societies Act provide for such objection which could be raised. After a long period the auction sale is questioned or rather is taken in exercise of powers for cancellation of an entry. The learned AGP has not been able to explain the exercise of such powers after 5 years. The effect of cancellation of Page 67 of 183 HC-NIC Page 67 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT an entry would be a blessing in disguise to the private respondents in light of the repeal of the ULC Act. This aspect cannot be totally overlooked particularly the manner in which the entire event has taken place."
46. On the strength of the above submissions, learned Senior Counsel for the petitioners has urged that the petitions be allowed. Submissions of learned Additional Advocate General in the first set of petitions challenging the refusal of N.A.Permission
47. Mr.Prakash K.Jani, learned Additional Advocate General, has made detailed submissions, which are summarised as below:
(1) That, the State is a custodian of the people and it would like to maintain the properties of the State, including the lands, for the ultimate welfare of the people.
Therefore, as and when it comes to the knowledge of the State Government that an officer of the State Government has passed an order without jurisdiction, the State is within its right to initiate proceedings and no period of limitation Page 68 of 183 HC-NIC Page 68 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT would apply to an order passed without jurisdiction. Such an order does not attain legality with the passage of time.
(2) It is submitted that a wrongful act committed by the officers of the State Government, without power or jurisdiction, would not preclude the State Government from asserting its ownership rights. That, the Mamlatdar had no jurisdiction under the Act to pass the order dated 05.05.1971. Similarly, the Collector also had no jurisdiction under the said Act. Anything done by the Mamlatdar or the Collector on assumed power will not bind the State Government. Learned Additional Advocate General has taken the Court through several provisions of the Act in order to drive home this point. Reference has been made to the definition of `Ankadedar' in Section 2(1)(a) of the Act, to "Ankadia tenure" in Section 2(1)(b), "Ankadia villages" in Section 2(1)(c), and to `Ankado' in Section 2(1)(d) of the Act. Reference has further been made to the `Code' under Section 2(1)(e) of the Act which means the Bombay Land Page 69 of 183 HC-NIC Page 69 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Revenue Code, 1879 (Bom. V of 1879). Learned Additional Advocate General has submitted that the definition of 'Collector', as given in Section 2(1)(f) of the Act does not refer to the Collector appointed under the Bombay Land Revenue Code. He has then referred to two Notifications. Notification No.TTA1660, IIJ, has been issued under subsection (1) of Section 2 of the Act, whereby the State Government has appointed Prant Officers to perform the functions and exercise the powers of the Collector within their respective jurisdictions under the Act. Another Notification No.GHM2863 MAKA1569/150870Y dated 19.09.1969, has been issued under subsection (4) of Sections 2 and 4 of the Act, authorising the Prant Officers of Baroda District for the purposes of these sub sections. In view of the above Notifications, it is submitted that the Mamlatdar is not mentioned in the entire Scheme of the Act. Neither does the Collector have any power under the Act, as the Prant Officer has been specifically appointed by the Act for the purpose. As it is Page 70 of 183 HC-NIC Page 70 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT only the Prant Officer who has jurisdiction under the Act, anything done or said by the Collector is without authority. Neither the Collector nor the Mamlatdar are competent to deal with questions arising from the provisions of the Act. As the Mamlatdar has not been vested with any authority under the Act, the order dated 05.05.1971, passed by him is nonest and non existent in the eyes of law. That the Act does not deal with the adjudication of occupancy rights between the tenants or occupants of an Ankadedar who own `Gharkhed' land. The dispute about Gharkhed land is outside the purview of the Act. The adjudication regarding Gharkhed land even by the Prant Officer is not contemplated. Therefore, when the Prant Officer is not competent to adjudicate the disputes whether the land would be Gharkhed land of the Ankadedar and whether the occupants cultivating the land of the Ankadedar are to be declared as deemed tenants, far be it for the Mamlatdar and the Collector to adjudicate such an issue. (3) It is submitted that the Act does not Page 71 of 183 HC-NIC Page 71 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT provide any mechanism to adjudicate whether the land owned by an Ankadedar as Gharkhed land is cultivated by agriculturists. There is no provision in the Act insofar as Gharkhed land is concerned. Therefore, the occupancy rights of persons who claim to be cultivating Gharkhed land of the Ankadedar cannot be adjudicated under the Act. The sequitur is that if the lawfully appointed authority, such as the Prant Officer could not have adjudicated the dispute, the Mamlatdar, who has no competence or jurisdiction, could not have taken a decision or passed an order in this matter.
(4) To further buttress the above point, learned Additional Advocate General has referred to the definition of "Gharkhed land" under Section 2(1)(g) of the Act and submitted that Gharkhed land means a land held by an Ankadedar as his private or personal property. He also referred to Section 2(1)(h) which defines "Jiwai land", meaning thereby, land held by a cadet of an Ankadedar's family for the purpose of maintenance. Learned Additional Advocate General Page 72 of 183 HC-NIC Page 72 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT has referred to Section 4 of the Act and has submitted that this Section envisages three types of lands, namely (1) Gharkhed land (2) Jiwai land and (3) land held by private persons who are liable to pay revenue to the Ankadedar. It does not make provision for a private agreement between the Ankadedar and his tenants. It is submitted that this provision also does not refer to an occupant who is holding the land of an Ankadedar. However, it refers to a land of an occupant who is liable to pay to the Ankadedar, such land revenue or rent in respect of such land, as an incident of Ankadia tenure. As per the learned Additional Advocate General, the Ankadedar has granted land to the occupants to till and as such it is a private dispute between the Ankadedar and the occupant. Therefore, the occupants do not fall within the purview of Section 4(1)(iii) of the Act. (5) Adverting to Section 2(4) of the Act, learned Additional Advocate General has submitted that this Section refers to an officer authorised by the State Government who shall Page 73 of 183 HC-NIC Page 73 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT decide whether any land is Gharkhed land or Jiwai land. As per the Notifications issued by the State Government, it is only the Prant Officer who can adjudicate this issue and not any other officer. The State Government would have the power of revision over the decision of the Prant Officer. It is further submitted that if someone is cultivating the land of an Ankadedar, he is not entitled to raise any dispute as it is a private dispute pertaining to Gharkhed or Jiwai land.
(6) Learned Additional Advocate General has next referred to the order dated 05.05.1971, passed by the Mamlatdar and has submitted that this order does not give a declaration that the land is Gharkhed land but gives a declaration that the tenants are occupants of the land assigned by the Ankadedar as they were paying `Saanth' (share of revenue) and `Daan' (crop share). It is submitted that the Mamlatdar had no jurisdiction to declare that the tenants of the Ankadedar are occupants of the land in question on the basis of assumed power, namely, Page 74 of 183 HC-NIC Page 74 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT the letter dated 31.03.1970 of the Collector, who himself had no authority under the Act. The Mamlatdar has declared eighteen persons to be the occupants of the land which authority is not conferred by the Act. Therefore, the said declaration is nonest in the eyes of law. (7) Learned Additional Advocate General has proceeded to go through the provisions of Section 3 of the Act and has submitted that the real effect of the Act is that all Ankadia villages were to be resumed and made liable for the payment of land revenue under the Code. This is the object of the Act.
(8) Referring to Section 5 of the Act, learned Additional Advocate General has submitted that this Section vests all uncultivated and waste lands and all properties of the nature specified in Section 37 of the Code in the State Government. He then proceeded to go through the provisions of Sections 37 and 38 of the Code with a view to show that the Code was already applicable in the State of Baroda Page 75 of 183 HC-NIC Page 75 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT post 1953, after the Act came into force. It is submitted that the procedure required to be undertaken by any party who claims interest in any property of the ownership of the State Government is delineated in subsections (2) and (3) of Section 37 of the Code. This procedure was not followed. Referring to Section 6 of the Act, it is submitted that this is the only provision regarding the grant of compensation upon the extinguishing or modification of the rights of the Ankadedar. It is submitted that the only right remaining to the Ankadedar was to get compensation and declare the land as Gharkhed land. The private cultivation of the land of the Ankadedar as occupants, as such, does not come into the picture at all. (9) Learned Additional Advocate General has gone through Section 15 of the Act regarding the repeal of the Baroda Ankadia Village Rules of 1932 and has submitted that the object of the Act is to abolish Ankadia tenure and remove the middlemen.
Page 76 of 183 HC-NIC Page 76 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT (10) It is further submitted that the tenants cultivating the land of the Ankadedar were made directly liable to pay land revenue to the State Government under the Bombay Land Revenue Code. The effect of the Act would be that in the Ankadia villages, the revenue authorities were entitled to collect revenue directly from all categories of deemed occupants, displacing the Ankadedar and his cadets. However, the Act does not make any provision to declare the tenants of the Ankadedar as occupants.
(11) Learned Additional Advocate General has then taken the Court through the provisions of the Gujarat Land Revenue Code, 1879, by referring to certain definitions such as definition of "revenue officer" in Section 3(1), definition of `tenant' in Section 3(14), `landlord' in Section 3(15), 'occupant' in Section 3(16), and that of 'occupy' in Section 3(17) of the Act. He has fleetingly taken the Court through the contents of Chapter II of the Code, regarding the constitution and powers of revenue officers. Referring to Section 12 of the Page 77 of 183 HC-NIC Page 77 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Code, which provides for the appointment of the Mamlatdar, it is submitted that the only powers that have been granted to the Mamlatdar are under this provision of law which delineates his duties and powers and not under the Ankadedar Tenure Abolition Act. By going through the provisions of Section 4 of the Act, regarding liability to pay land revenue unless specifically exempted, it is submitted that this provision would come into effect after the abolition of the Ankadia tenure.
(12) Learned Additional Advocate General has further taken the Court through the contents of ChapterVIIIA, ChapterIX and ChapterX of the Code, and has submitted that after the abolition of the Ankadia tenure upon coming into force of the Act on 15.08.1953, the authorities of the State Government would derive power and there would be a direct relationship between the payer of land revenue and the State Government. (13) Learned Additional Advocate General has next referred to the provisions of the Tenancy Page 78 of 183 HC-NIC Page 78 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Act in order to further emphasis his submission that the Mamlatdar could not have made any declaration regarding occupancy under the Act. The occupants, being tenants of the Ankadedar, ought to have resorted to the procedure under the Tenancy Act. In this view of the matter as well, the order of the Mamlatdar is without jurisdiction.
(15) Learned Additional Advocate General has next contended that eighteen occupants of the land in question made an application dated 13.06.1963, to the Hon'ble Chief Minister. The Ankadedar was not a signatory to the application. No such application could have been made by the occupants. In the said application, it is stated that they are cultivating the land in question, therefore, their rights be decided. However, as the Ankadedar has not made any application for the land to be declared as Gharkhed land, the application made by the occupants for determination of their rights was not maintainable.
Page 79 of 183 HC-NIC Page 79 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT (16) It is submitted that directions by the Collector, to the Mamlatdar to inquire into the contents of the application of the applicants and verify whether they are occupants could not have been issued in such a routine manner. In any case, the Collector has asked the Mamlatdar to verify the factual position and inform him, but not to declare them as occupants. (17) Learned Additional Advocate General has referred to a letter dated 08.07.1965, found on record and has submitted that this letter shows that there is an unauthorised possession over the land by the occupants and nowhere is there a reference that it is Gharkhed land. He has next referred to a letter dated 31.10.1966, of the Mamlatdar addressed to the Collector. It is submitted that there is nothing on record as to how the Ankadedar would become the occupant of the land. Reference has also been made to the letter dated 29.07.1967, of the Mamlatdar, on the basis of which it is submitted that it is indicative of the fact that no details or records are available. Learned Additional Page 80 of 183 HC-NIC Page 80 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Advocate General has next referred to the letter dated 12.01.1969 of the Mamlatdar as also to the letter dated 31.03.1970 of the Collector to the Ankadedar, on which there is an endorsement to the Mamlatdar to find out the factual position, which has given rise to the order dated 05.05.1971 of the Mamlatdar.
(18) Learned Additional Advocate General has read the entire contents of the order dated 05.05.1971 and has submitted that when no jurisdiction was vested in the Mamlatdar to declare the cultivators of the land as occupants, they do not derive any title. They, therefore, could not have passed on a better title to the petitioners who have purchased the lands from them.
(19) Learned Additional Advocate General has then proceeded to read the affidavitinreply filed by respondent No.2 Collector in Special Civil Application No.4971 of 2012, which petition has been filed against the order refusing to grant N.A.Permission. He has Page 81 of 183 HC-NIC Page 81 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT emphatically underlined the stand taken by the State Government in the said reply, to the effect that the land in question is of the ownership of the State Government. He has submitted that the said land is "Sarkari Gauchar" land and has been recorded as such in the record from the year 1908. Learned Additional Advocate General has referred to the "Prati Book", wherein it is stated that the land is "Sarkari Gauchar" and "Sarkari Kharabo". He has referred to the Faisal Patrak of the year 194849, wherein the said lend is described as "Padtar" (waste) land. Reference has also been made to "Aakar Bandh" of the year 1960, wherein, in respect of the land, it is stated that it is "Sarkari Vavetar Kharabo". It is submitted that these three documents, namely, the "Prati Book", "Faisal Patrak" and "Aakar Bandh", are from the office of the District Inspector, Land Records, who is an authority under the Code and Land Manual, responsible for the identification of the land, the area and the occupancy of the land. That, from the year 1908 till 1960, the Page 82 of 183 HC-NIC Page 82 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT land has been shown to be of the State Government. The Act came into force in the year 1953. Even thereafter, the land is shown as Government Land. Learned Additional Advocate General has next referred to the extracts of Village Form No.7/12 wherein, from the year 195354, it is shown that the land is owned by the State Government and is described as "Padtar" land. It is submitted that nowhere is the name of the Ankadedar referred to in the extracts of Village Form No.7/12. That the occupants are deriving occupancy from the Ankadedar. However, when the Ankadedar's name is not to be found in the Village Form No.7/12, it shows that he has no title to the land; therefore, he cannot give a better title than he himself possesses.
(20) Learned Additional Advocate General has further contended that after the passing of the order of the Mamlatdar dated 05.05.1971, surprisingly, for the same period of time, another set of record is created. Referring to pages 253 to 287 of the paperbook, it is Page 83 of 183 HC-NIC Page 83 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT submitted that the erstwhile Thakore (Ankadedar) is shown to be the occupant of the land in question in brackets. The land record pertains to the year 1972 onwards which is after the order passed by the Mamlatdar. If there is one set of documents which do not mention the name of the Ankadedar, how come another set of documents indicating the name of the Ankadedar in brackets came into existence? These documents would go to show that the Ankadedar was not the owner of the land and the land was not Gharkhed land. If the Ankadedar has given Government land for cultivation to some persons, it would not give title to those persons on the basis that the Ankadedar was the owner of the land. It is submitted that there are overwhelming documents to show that the land was Government land, Gauchar land and Waste land and the Mamlatdar has not at all considered the relevant documents in the order dated 05.05.1971.
(21) Without prejudice to the above submissions, it is contended that under the Scheme of the Act, the Mamlatdar has no Page 84 of 183 HC-NIC Page 84 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT jurisdiction in the face of such overwhelming record. The order of the Mamlatdar speaks volumes about the legality, correctness and jurisdiction of the said order.
(22) Learned Additional Advocate General has next referred to the prayers made in the petition and has submitted that the petitioners have prayed for the issuance of a Writ of Mandamus. Such a Writ can only be issued to a public authority to perform public duties. It is not available for quashing an order of any authority.
(23) Learned Additional Advocate General has further contended that in the impugned order dated 21.03.2012 passed by the Collector, he has stated that the N.A.Permission cannot be granted in respect of the land in question as it is subject to premium. This order has been challenged in the petitions. However, thereafter, several events took place, such as the filing of Letters Patent Appeals by the State Government and Civil Applications by the Page 85 of 183 HC-NIC Page 85 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT petitioners, in the appeals of the State Government. It is submitted that the record of the State Government reveals that the land in question was Government land and the statement of the State Government was recorded before the Division Bench that the State intends to issue showcause notices. This was not to overreach the process of the Court but was in order to resume the land of the State Government of which the Mamlatdar has wrongly declared certain persons to be the occupants.
(24) Learned Additional Advocate General has further contended that without prejudice to the contention that the Collector has no power under the Act and it is only the Prant Officer who is authorised by the State, even assuming that the Collector has power to decide a dispute regarding occupancy, he could not have delegated this power to the Mamlatdar, as a delegatee cannot further delegate. Such delegation of power being without jurisdiction, the order passed by the Mamlatdar as a result of such delegation is also without jurisdiction. Page 86 of 183 HC-NIC Page 86 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT (25) In support of his submission that the order dated 05.05.1971, is without jurisdiction and the challenge thereto can be raised at any point of time, learned Additional Advocate General has relied upon the decision of the Supreme Court in the case of Kiran Singh and Others v. Chaman Paswan and others - AIR 1954 SC 340(1), wherein it is held as below:
"6. The answer to these contentions must depend on what the position in law is when a Court entertain a suit or an appeal over which it has no jurisdiction and what the effect of Section 11 of the Suit Valuation Act is on that position. It is a fundamental principle wellestablished that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether, it is in respect of the subjectmatter of the action, strikes at the very authority of the Court to pose any decree, and such a defect cannot be cured even by consent of parties. If the question Page 87 of 183 HC-NIC Page 87 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District, Court of Monghyr was coram non judice, and that its judgment and decree would be nullities. The question is what is the effect of Section 11 of the Suits Valuation Act on this position."
(26) Reference has also been made to another decision of the Supreme Court in the case of Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) Through His LRs. (1990)1 SCC 193, wherein the same principle of law is expressed as follows:
"26. Thus it is settled law that normally a decree passed by a Court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a Court without jurisdiction over the subject matter or on other grounds which goes to the root Page 88 of 183 HC-NIC Page 88 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT of its exercise or jurisdiction, lacks inherent jurisdiction. It is a corum non judice. A decree passed by such a Court is a nullity and is non est. Its validity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the court to pass a decree which cannot be cured by consent or waiver of the party. If the Court has jurisdiction but there is defect in its exercise which does not go to the root of its authority, such a defect like pecuniary or territorial could be waived by the party. They could be corrected by way of appropriate plea at its inception or in appellate or revisional forums, provided law permits. The doctrine of res judicata under Section 11 CPC is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus the decision of a competent Court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties Page 89 of 183 HC-NIC Page 89 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a Court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of a law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a Court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a Court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a Court. Therefore, the doctrine of res judicata does not apply to a case of decree Page 90 of 183 HC-NIC Page 90 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT of nullity. If the Court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction."
(27) The next judgment of the Apex Court cited by the learned Additional Advocate General is in the case of Chandrabhai K. Bhoir and Ors. v. Krishna Arjun Bhoir and Ors. (2009)1 GLH 675, wherein, it is held as under:
"21. Thus, the said issue, in our opinion, did not attain finality. In any view of the matter, an order passed without jurisdiction would be a nullity. It will be a coram non judice. It is non est in the eye of law. Principles of res judicata would not apply to such cases. [See Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu (1979) 2 SCC 34, Union of India v. Pramod Gupta (2005) 12 SCC 1 and National Institute of Technology and Ors. v. Niraj Kumar Singh (2007) 2 SCC 481]"
(28) Another judgment relied upon is in the case of State of Gujarat v. Rajesh Kumar Page 91 of 183 HC-NIC Page 91 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Chimanlal Barot And Another - (1996)5 SCC 477, wherein it has been held as below:
"5. We find this very difficult to appreciate. If a Court does not have jurisdiction, it does not have jurisdiction, regardless of the fact that one of the parties involved is a Gram Panchayat or the period involved is very short or the amount involved is very small. If a Court does not have jurisdiction, it is the obligation of the appellate Court so to hold and to set aside the order under appeal."
(29) To substantiate the submission that limitation does not apply to an order without jurisdiction, reliance has been placed upon a judgment of this Court in the case of Rajput Vibhubhai Jethabhai v. Rokhavdas Dhulchand Sanghavi - 1997(1) GLH 529, wherein this Court has held as below:
"11. .....On the facts and in the circumstances of the case, I am of the opinion that lease granted by Palitana Municipality to the appellant in the year 1957 was null and void ab initio and the plaintiffs were entitled to challenge the action of Palitana Municipality even after Page 92 of 183 HC-NIC Page 92 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT lapse of long time. Before filing the suit, the plaintiffs had served notice to the Municipality as required by Section 253 of the Gujarat Municipalities Act, 1963. The nuisance and obstruction caused by the appellant is a continuing wrong and therefore, the period of limitation prescribed by Section 253 of the Gujarat Municipalities Act, 1963 has no application to the facts of the case. Even otherwise a void order does not require to be set aside by initiating proceedings within the time prescribed by law. It is a fundamental principle that an order passed without jurisdiction is a nullity and its invalidity can be set up whenever and wherever it is so sought to be enforced or relied upon......"
(30) The next judgment cited on this aspect by the learned Additional Advocate General is in the case of Bhanumatiben D. Soni v. State of Gujarat - 2003(4) GLR 2808, wherein this Court has held as below:
"21. As to the delay caused in filing Special Civil Applications Nos.845 of 1985 and 439 of 1996, it must be noted that neither of the said writ petitioners was a party to the appeal before the Tribunal.Page 93 of 183
HC-NIC Page 93 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Besides, as I should presently discuss, the impugned order of the Tribunal is a nullity and is void ab initio. The said order has been made by the Tribunal without the authority of law, for extraneous consideration and with corrupt motive. Such an order cannot be validated by rejecting the challenge to the said order on the grounds of delay, latches and acquiescence [Reference can be had to 1992 1 GLR 14]"
(31) Another judgment relied upon by the learned Additional Advocate General on the same point is that of the Apex Court in the case of Chiranjilal Shrilal Goenka (Deceased) Through LRs. v. Jasjit Singh And Others - (1993)2 SCC 507, wherein it is held:
"18. It is settled law that a decree passed by a court without jurisdiction on the subject matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral Page 94 of 183 HC-NIC Page 94 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party......"
(32) In Dr.Jagmittar Sain Bhagat v. Dir. Health Services, Haryana & Ors. 2013(2) GLH 649, same principle of law has been reiterated as below:
"7. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does Page 95 of 183 HC-NIC Page 95 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT not apply. (Vide: United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan and Ors., AIR 1978 SC 22; Natraj Studios (P) Ltd. v. Navrang Studios and Anr., AIR 1981 SC 537; and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., AIR 1999 SC 2213)."
(33) Reference has also been made to the judgment of the Division Bench in the case of Shree Cinema (Screen No.3 and 4) v. State of Gujarat - 2013(0) GLHELHC 230567, which also is on the point of jurisdiction. The Division Bench has been held as below:
"9.01. At the outset, it is required to be noted that in the present case respondent No.2 Collector, Entertainment Tax, Surat has passed the impugned order imposing / levying penalty under section 9(3) of the Act for late payment / nonpayment of the entertainment tax due and payable. Considering section 9(3) of the Act, it is only the Prescribed Office and that too while passing order of assessment and/or reassessment, is authorized and/or can levy penalty under section 9(3) of the Act. Nothing has been pointed out that the respondent No.2 Collector, Entertainment Page 96 of 183 HC-NIC Page 96 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Tax, Surat is the Prescribed Officer. It is not the case on behalf of the respondents that the respondent No.2 Collector, Entertainment Tax, Surat is the Prescribed Officer. As per Rule 6 of the Entertainment Tax Rules, 1979, all the Deputy Commissioners of Income Tax, all the Taluka Mamlatdars, All the Entertainment Tax Mamlatdars and any other officer authorized by the Entertainment Tax Collector shall be the Prescribed Officer. Under the circumstances, when the respondent No.2 Collector, Entertainment Tax, Surat is not the Prescribed Officer, the respondent No.2 Collector, Entertainment Tax, Surat lacks total jurisdiction in imposing and/or levying penalty under section 9(3) of the Act. Under the circumstances, the impugned orders passed by the Collector, Entertainment Tax, Surat which have been modified by the revisional authority are wholly without jurisdiction and authority under the law. Under the circumstances, on the aforesaid ground alone, the impugned orders deserve to be quashed and set aside.
9.02. Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Deepak Agro Foods (supra) and request made by Mr.Gandhi, learned Assistant Government Pleader to Page 97 of 183 HC-NIC Page 97 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT remand the matter and permit the appropriate authority to pass afresh order is concerned, on facts, the decision of the Hon'ble Supreme Court in the case of Deepak Agro Foods (supra) would not be applicable. In the aforesaid decision, the Hon'ble Supreme Court has explained the difference between the null & void order and irregular or illegal or wrong order. In the aforesaid decision, it is observed and held by the Hon'ble Supreme Court that order passed without jurisdiction renders the order void abinitio because absence of jurisdiction goes to the root of the matter and such a defect not curable at all. It is further observed and held that however, the order passed in a wrongful manner by an appropriate authority having jurisdiction is not a nullity but an irregularity or illegality which can be cured by passing afresh order. In the present case, as held hereinabove, the Collector, who passed the order imposing penalty under section 9(3) lacks total jurisdiction and therefore, such an order can be said to be void abinitio.
Under the circumstances, on facts, the decision of the Hon'ble Supreme Court in the case of Deepak Agro Foods (supra) would not be applicable."
(34) On the point that a void order cannot Page 98 of 183 HC-NIC Page 98 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT create any rights, reliance has been placed upon the judgment of the Supreme Court in the case of Shivshankar Gurjar v. Dilip - (2014)2 SCC 465, wherein the Supreme Court has held thus:
"14. It is well settled that such a void order can create neither legal rights nor obligations. Therefore, the appellant cannot be denied his right to recover possession of the property in dispute on the ground that he did not choose to challenge such a void order."
(35) On the ground that procedure should be followed as prescribed by the statute, reliance has been placed upon Zuari Cement Limited v. Regional Director, Employees' State Insurance Corporation, Hyderabad And Others - (2015)7 SCC 690, wherein it has been held as below:
"14. As per the scheme of the Act, appropriate Government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand and others v. Ambay Cements and Page 99 of 183 HC-NIC Page 99 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT another (2005) 1 SCC 368 : (AIR 2005 SC 4168), it was held that: (SCC p.378, para
26) "26. ....It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way".
15. In Babu Verghese and others v. Bar Council of Kerala and others (1999) 3 SCC 422 : (AIR 1999 SC 1281), it was held as under: (SCC pp.43233, paras 3132) "31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor (45 LJCH
373) which was followed by Lord Roche in Nazir Ahmad v. King Emperor, (AIR 1936 PC 253) who stated as under:
"[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. (AIR 1954 SC 322) and again in Deep Chand v. State of Rajasthan (AIR 1961 SC 1527). These cases were considered by a threeJudge Bench of this Court in State of U.P. v. Singhara Singh (AIR 1964 SC 358) and the rule laid down in Nazir Ahmad case (AIR 1936 PC 253) was again upheld.
Page 100 of 183 HC-NIC Page 100 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."
16. Where there is want of jurisdiction, the order passed by the court/tribunal is a nullity or nonest. What is relevant is whether the Court had the power to grant the relief asked for. ESI Court did not have the jurisdiction to consider the question of grant of exemption, order passed by the ESI Court granting exemption and consequently setting aside the demand notices is nonest. The High Court, in our view, rightly set aside the order of ESI Court and the impugned judgment does not suffer from any infirmity warranting interference." (36) To buttress the same submission, reference has been made to the case of Babu Verghese And Others v. Bar Council of Kerala And Others - (1999)3 SCC 422, wherein the Apex Court has held that:
"31. It is the basic principle of law long settled that if the manner of going a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v.Page 101 of 183
HC-NIC Page 101 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Taylor, (1875) 1 Ch D 426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor, 63 Ind App 372 : AIR 1936 PC 253 who stated as under:
"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1954 SCR 1098 :
AIR 1954 SC 322 and again in Deep Chand v. State of Rajasthan, (1962) 1 SCR 662 : AIR 1961 SC 1527. These cases were considered by a Three Judge Bench of this Court in State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 : (1964) 1 SCWR 57 and the rule laid down in Nazir Ahmad's case (supra) was again upheld. The rule has since been applied to the exercise of jurisdiction by Courts and has also been recognised as a salutary principle of administrative law."
(37) To substantiate the submission that one who does not possess title cannot pass on a better title, learned Additional Advocate General has placed reliance upon a judgment of the Supreme Court in the case of Union of India v. Robert Zomawia Street - (2014)6 SCC 707, wherein it is held as below:Page 102 of 183
HC-NIC Page 102 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT "18. .... The plaintiff, on the other hand, has not produced any document to show the title of his predecessorininterest. Nemo dat quid non habet is the maxim which means no one gives what he does not possess, aptly applies in the case. It needs no emphasis that the successor will not have better title then what his predecessor had. Hence, we reject this submission of Mr.Venugopal."
(38) Reference has also been made to the judgment of the Supreme Court in the case of Mohinder Singh Gill And Another v. The Chief Election Commissioner, New Delhi And Others - (1978)1 SCC 405, that has also been relied upon by learned Senior Counsel for the petitioners by referring to Paragraph 8 of the said judgment. (39) Reliance has also been placed upon a judgment of the Supreme Court in the case of Transmission Corporation of Andhra Pradesh Limited And Another v. Sai Renewable Power Private Limited And Others - (2011)11 SCC 34, in support of the proposition that inter se letters cannot bind the State Government. The relevant extract of the judgment is reproduced Page 103 of 183 HC-NIC Page 103 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT hereinbelow:
"80. On the basis of this factual matrix, the respondents claimed that the State Government and the Regulatory Commission both were bound to continue the incentives as were provided to them in furtherance to the letters and orders of Central as well as the State Governments discussed above. They have a legitimate right to expect that these incentives were to be continued indefinitely in the same manner and the authorities concerned are estopped from altering the rates and/or imposing the condition of no sale to third parties. We are unable to find any merit in this contention. In our view, the Tribunal has erred in law in treating these interse letters and guidelines between the Government of India, State Government and the Commission/the State Electricity Board as unequivocal commitments to the respondent/purchasers/generators/developers so as to bind the State for all times to come. For the principle of estoppel to be attracted, there has to be a definite and unambiguous representation to a party which then should act thereupon and then alone the consequences in law can follow."
(40) On the point that mere notings on the Page 104 of 183 HC-NIC Page 104 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT file does not constitute an order, reliance has been placed upon the judgment of the Supreme Court in the case of Bachhittar Singh v. State of Punjab - AIR 1963 SC 395, the relevant extract of which is reproduced hereinbelow:
"9. The questions, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by c1.(1) of Art. 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot in our opinion be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones."
(41) In support of the proposition that a delegatee cannot further delegate power, reliance has been placed upon a judgment of the Apex Court in the case of OCL India Limited v. Page 105 of 183 HC-NIC Page 105 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT State of Orissa And Others - (2003)2 SCC 101, wherein it has been held as below:
"14. It is no doubt true that the Commissioner is not denuded of the statutory power of revision after delegation, but that, in view of the said notification, only means that he can resume that power or cancel the delegation of revisional power to the Assistant Commissioner. That, by no stretch of imagination, can be construed to mean that once the orders have been examined under the revisional power by the Assistant Commissioner (the delegatee), the same orders can again be subjected to the revisional jurisdiction by the Commissioner."
(42) On the same proposition, reference has been made to another judgment of the Supreme Court in the case of Director General, ESI And Another v. T. Abdul Razak - (1996)4 SCC 708, wherein it has been held as below:
"14. The law is well settled that in accordance with the maxim delegatus non protest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub Page 106 of 183 HC-NIC Page 106 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT delegation of the power is authorised by express words or necessary implication. [See : Halsbury's Law of England, 4th Edn. Vol. 1 para 32 p.34; Craies on Statute Law, 7th Edn. p.316; Barium Chemicals Ltd. v. Company Law Board 1966 Supp SCR 311 at p.330, and Sahni Silk Mills (P) Ltd. v. Employees State Insurance Corporation, (1994) 5 SCC 346, at pp. 35051) .
15. In Sahni Silk Mills (P) Ltd. v. Employees State Insurance Corporation, [(1994)5 SCC 346)] this Court has approved the decision of the Karnataka High Court in Employees State Insurance Corporation, Bangalore v. Shoba Engineers, Bangalore, (1982 (44) FLR 100 (Kant)). It has been held that Parliament while introducing Section 94A in the Act only conceived direct delegation by the Corporation to different officers or authorities subordinate to the Corporation and there is no scope for such delegate to subdelegate that power, by authorising any other officer to exercise or perform the powers so delegated....."
(43) On the same principle, learned Additional Advocate General has further relied upon the judgment in the case of Sahni Silk Mills (P) Ltd. And Another v. Employees' State Page 107 of 183 HC-NIC Page 107 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Insurance Corporation - (1994)5 SCC 346, which has been followed in the previous judgment relied upon by the learned Additional Advocate General.
Submissions of learned Additional Advocate General in the second set of petitions challenging the showcause notices:
48. Regarding the second set of petitions preferred by the petitioners challenging the showcause notice dated 05.03.2015, learned Additional Advocate General has submitted that:
(1) The petitioners had given a reply to the said showcause notice on 21.05.2015, meaning thereby, that they had already participated in the proceedings of the showcause notice before the Collector, which fact they have not revealed in the petitions. Only when the petitioners realised that the decision is likely to go against them, have they challenged the show cause notice without disclosing that they have participated in the proceedings. The reply had already been filed by the petitioners when the petitions challenging the showcause notice were Page 108 of 183 HC-NIC Page 108 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT filed, hence, it amounts to a suppression of material facts by the petitioners. It is a settled principle of law that persons who do not come to the Court with clean hands do not deserve to be granted extraordinary equitable and discretionary relief by this Court. Though later, the petitioners have placed the reply to the showcause notice on record, however, their conduct may be considered, as they had deliberately withheld the reply when the petitions were filed.
(2) That, a writ petition against a show cause notice is not maintainable, as has been held by the Supreme Court in the case of State of Orissa And Others v. Mesco Steels Limited And Another - (2013)4 SCC 340, the relevant extract of which is as below:
"21. In the light of what we have said while deciding question No.1 above, this question should not hold us for long. It is true that the High Court had by an interlocutory order directed the parties to maintain status quo, but whether the said order had the effect of preventing the State Page 109 of 183 HC-NIC Page 109 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Government from issuing a showcause notice was arguable. The issue of showcause notice did not interfere with the status quo. It simply enabled the respondent Company to respond to the proposed action. Be that as it may, once the show cause notice was issued, the High Court could have directed the respondent Company to respond to the same and disposed of the writ petition reserving liberty to it to take recourse to such remedy as may have been considered suitable by it depending upon the final order that the Government passed on the said notice. What was significant was that the respondent Company had not assailed the validity of the show cause notice on the ground of jurisdiction or otherwise. If the validity of the showcause notice was itself in question on the ground that the Government had no jurisdiction to issue the same, nothing prevented the Company from maintaining a writ petition and challenging the notice on that ground. The High Court would in that event have had an opportunity to examine the validity of the notice. In the absence of any such challenge the High Court could not simply ignore the notice even if it was issued in breach of the order passed by the Court. It was one thing to prevent further steps being taken pursuant to the notice issued by the Government but Page 110 of 183 HC-NIC Page 110 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT an entirely different thing to consider the notice to be non est in the eye of law. The High Court could have taken the showcause notice as a reason to relegate the parties to a procedure which was just and fair and in which the respondent could urge all its contentions whether on facts or in law. Our answer to Question 2 is, therefore, in the negative."
49. It is, therefore, submitted that the impugned showcause notices are maintainable and the second set of petitions deserve to be rejected, having been filed against showcause notices.
50. Distinguishing the judgments relied upon by learned Senior Counsel for the petitioners, learned Additional Advocate General has submitted that the question of delay would arise when the authority clothed with power to decide has passed an order. When an order has been passed without jurisdiction, no limitation would apply. It is submitted that the Mamlatdar had no jurisdiction to pass the order in respect of the occupants of the land in question, therefore, the Collector was entitled to issue a showcause Page 111 of 183 HC-NIC Page 111 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT notice under Section 211 of the Code in a case where the Mamlatdar has exercised jurisdiction not vested in him.
51. In short, learned Additional Advocate General has submitted that none of the judgments cited on behalf of the petitioners has any relevance to the facts and circumstances of the present petitions as none of them are based on identical facts, therefore, the principles of law emanating from such judgments have no applicability.
52. In conclusion, learned Additional Advocate General has submitted that the present is a case where valuable land of the State Government has been parted with by the Mamlatdar by passing an order without jurisdiction. By virtue of the said order, certain persons have become occupants of the said lands and have sold the land of the State Government to the petitioners.
53. The State Government is the custodian of the people and acts for the welfare of the people. The lands can be utilised for welfare activities Page 112 of 183 HC-NIC Page 112 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT by the State Government, or for agricultural purposes. The State has a huge financial interest in the land in question, therefore, the petitions may not be entertained. It is submitted that considering the above submissions, the authorities may be permitted to pass an order pursuant to the showcause notices issued to the petitioners. If the petitioners are aggrieved by said order, they can challenge the same.
54. On the basis of the above submissions, it is prayed that the petitions be rejected. Submissions in rejoinder on behalf of the petitioners:
55. In rejoinder to the submissions advanced by the learned Additional Advocate General, Mr.Mihir J. Thakore, learned Senior Counsel for the petitioners, apart from reiterating his earlier submissions, has distinguished the judgments relied upon by the respondents. With respect to the judgments on the issue of jurisdiction, it is submitted that the proposition of law that an order without jurisdiction is void and can be Page 113 of 183 HC-NIC Page 113 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT called into question at any time, even in collateral proceedings, cannot be disputed. However, only if there is an inherent lack of jurisdiction in any authority in passing an order, would this proposition be applicable. As per his submission, in the present case, the Mamlatdar was not passing any order under the provisions of the Act, therefore, the order of the Mamlatdar does not lack jurisdiction and neither is it nonest, as he was only conducting an inquiry to verify the aspect whether the predecessors of the petitioners were cultivating the land and paying land revenue or rent to the Ankadedar prior to the coming into force of the Act, or not. Such a factfinding inquiry is not contemplated under the Act but has been undertaken only to give effect to the law laid down in Section 4(1)(iii), therefore, the order of the Mamlatdar cannot be said to be without jurisdiction. Hence, the judgments cited by the learned Additional Advocate General in this regard are not relevant or applicable in the present case.
Page 114 of 183 HC-NIC Page 114 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT
56. Regarding the judgments relied upon by the State Government on the issue that a delegatee cannot further delegate power, it is submitted that in the present case, there is no question of delegation of power at all. The Collector has merely directed the Mamlatdar to conduct an inquiry and verify the aspect whether the predecessorsintitle of the petitioners were cultivating the land and paying land revenue or rent so as to give effect to the provisions of the Act. Nowhere is the word "delegation" used in the communication of the Collector to the Mamlatdar. In fact, he has only asked the Mamlatdar to report to him after verifying the necessary aspects. This does not amount to a delegation of powers. It is submitted that the principles of law enunciated in the judgments cited by the learned Additional Advocate General in this regard cannot be disputed. However, they have no relevance, whatsoever, in the facts of the present case.
57. It is next submitted that the principle of law enunciated in the judgments cited by the learned Page 115 of 183 HC-NIC Page 115 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Additional Advocate General that an act has to be done in the manner prescribed is also undisputed. However, in the present case, Section 4 does not prescribe any manner of doing any act. The Section operates on its own in the case of occupants who have been cultivating the land or paying land revenue or rent to the Ankadedar prior to the coming into force of the Act. No procedure is prescribed for such persons to be declared as occupants of the land, liable to pay land revenue to the State Government directly, instead of to the Ankadedar.
58. It is submitted by learned Senior Advocate for the petitioners that much has been said regarding the alleged suppression of material facts by the petitioners in not placing on record the reply to the showcause notice with the memorandum of the petitions. It has also been submitted that the writ petitions challenging a showcause notice are not maintainable as the petitioners have participated in the proceedings by filing a reply. In response, it is submitted that though Page 116 of 183 HC-NIC Page 116 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT it is true that having filed a reply, there is participation in the proceedings, however, if the showcause notice, itself, is without jurisdiction, then the mere factum of participation becomes inconsequential and a Writ of Prohibition would lie. The Mamlatdar has passed the order pursuant to a factfinding inquiry and not under any provision of the Act, therefore, such order cannot be said to be without jurisdiction. It follows that the show cause notice calling in question such an order cannot be issued after a gross delay of forty four years. Moreover, the said order, not having been passed under any provision of the Code, cannot be questioned in exercise of power under Section 211 of the Code. On these grounds, it is reiterated that the showcause notice is patently without jurisdiction.
59. In this regard, learned Senior Counsel for the petitioners has placed reliance upon a judgment of the Supreme Court in the case of Calcutta Discount Co. Ltd. v. Income Tax Officer, Companies District I Calcutta And Another - Page 117 of 183 HC-NIC Page 117 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT AIR 1961 SC 372, wherein it has been held as below:
"28. In the present case the company contends that the conditions precedent for the assumption of jurisdiction under s. 34 were not satisfied and come to the court at the earliest opportunity. There is nothing in its conduct which would justify the refusal of proper relief under Art. 226. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons. In the present case we can find no reason for which relief should be refused.
29. We have therefore come to the conclusion that the company was entitled to an order directing the Incometax Officer not to take any action on the basis of the three impugned notices."
60. It is further submitted by learned Senior Counsel that this Court may entertain the petitions against the showcause notice in view of the fact that the said showcause notice is without jurisdiction, especially, in view of the Page 118 of 183 HC-NIC Page 118 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT principles of law enunciated by the Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai And Others - (1998)1 SCC 1, wherein it has been held as below:
"15. This is also the contention of Mr. Sudhir Chandra, senior counsel appearing for the Chinar Trust. He has also contended that the High Court was fully justified in dismissing that petition at the threshold particularly as the Writ Petition was directed only against a notice issued under Section 56(4) of the Act requiring the appellant to show cause why the Registration Certificate be not cancelled. The appellant, it is contended, should have submitted a reply to that notice and allowed the Registrar to dispose of the whole matter on merits particularly as the Registrar had initiated the action principally on the ground that the appellant had obtained the renewal of the Trade Mark by misrepresentation and concealment of relevant facts.
*** *** ***
20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which though old, Page 119 of 183 HC-NIC Page 119 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."
61. Regarding the allegation of suppression of facts, it is submitted that the reply to the showcause notice was not initially annexed to the petition. However, it was brought on record by way of an amendment. That the petition was filed mainly on two counts. Firstly, that the showcause notice in exercise of power under Section 211 of the Code cannot be issued against an order that has not been passed under the Code and secondly, that there is an unreasonable delay of fortyfour years in issuing the said notice. For the purpose of the above two contentions, the initial nondisclosure of the reply filed to the showcause notice is of no Page 120 of 183 HC-NIC Page 120 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT consequence. Learned Senior Counsel has placed reliance upon a judgment of the Supreme Court in the case of S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Others - (2004)7 SCC 166 in this regard and has submitted that as per the principles of law laid down in this judgment, not mentioning the filing of the reply would not affect the merits of the case. The relevant extracts of the judgment are reproduced hereinbelow:
"13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view the Court may have taken. Thus when the liability to Income Tax was questioned by an applicant on the ground of her non residence, the fact that she had purchased and was maintaining a house in the country Page 121 of 183 HC-NIC Page 121 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT was held to be a material fact the suppression of which disentitled her from the relief claimed. Again when in earlier proceedings before this Court, the appellant had undertaken that it would not carry on the manufacture of liquor at its distillery and the proceedings before this Court were concluded on that basis, a subsequent writ petition for renewal of the licence to manufacture liquor at the same distillery before the High Court was held to have bee n initiated for oblique and ulterior purposes and the interim order passed by the High Court in such subsequent application was set aside by this Court. Similarly, a challenge to an order fixing the price was rejected because the petitioners had suppressed the fact that an agreement had been entered into between the petitioners and the Government relating to the fixation of price and that the impugned order had been replaced by another order.
14. Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable (sic), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ Page 122 of 183 HC-NIC Page 122 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a Court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article
226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If however a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the Court to entertain the writ petition.
The Rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another Court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. Page 123 of 183 HC-NIC Page 123 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article
32. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226. Therefore the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits."
(emphasis supplied)
62. It is submitted that the alleged suppression not being material for the decision of the petition on merits, the petitioners may not be unsuited on this ground.
63. Reference has then been made to the decision of the Supreme Court in Arunmia Baruah v. Union of India And Others - (2007)6 SCC 120, wherein the Supreme Court has held as below:
"12. It is trite law that so as to Page 124 of 183 HC-NIC Page 124 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.
... ... ...
22. In this case, however, suppression of filing of the suit is no longer a material fact. The learned Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the Page 125 of 183 HC-NIC Page 125 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Court's jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India."
(emphasis supplied)
64. With regard to the contention raised by the learned Additional Advocate General that a writ petition is not maintainable against a show cause notice, reference has been made to the very judgment relied upon by him in the case of State of Orissa And Others v. Mesco Steels Limited And Another (supra). The purport of Paragraph21, which was relied upon, is that the challenge to a showcause notice on the ground of jurisdiction is maintainable. It is submitted that this judgment would help the petitioners rather than the respondents. As the petitioners have challenged the showcause notice on the Page 126 of 183 HC-NIC Page 126 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT ground of jurisdiction, the said challenge is maintainable before this Court.
65. Learned Senior Counsel has further distinguished the proposition set up by learned Additional Advocate General that internal communications do not bind the State Government and the judgment cited in this regard. It is submitted that in the judgment relied upon by the learned Additional Advocate General in Transmission Corporation of Andhra Pradesh Limited And Another v. Sai Renewable Power Private Limited And Others (supra), the proposition was in respect of a legitimate expectation which cannot be read out of context. The present petitioners are not relying upon any letters of the authorities. Not have they set up any legal arguments on legitimate expectations or estoppel on the said ground, therefore, this judgment though cannot be disputed in the context of its own facts, would not be applicable in the present case.
66. Responding to the argument on behalf of the Page 127 of 183 HC-NIC Page 127 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT State Government that the petitioners should have approached the authorities under the Tenancy Act, as the predecessorsininterest of the petitioners were tenants of the Ankadedar, it is submitted that the Tenancy Act, as it existed in the year 1953, when the Act came into force only provided for protecting the possession of the tenants. It never contemplated that a tenant would become an owner of the land at that point of time. The provision of Section 32 of the Tenancy Act was inserted in the year 1956 and the tenant became the owner only on 01.04.1957, referred to as "Tiller's Day". When the Ankadedar Tenure Abolition Act came into force, there was no scope for the tenant to become owner. Moreover, there was no concept of new tenure in the Tenancy Act as per Section 43 in the year 1953, when the Ankadedar Tenure Abolition Act came into force. This concept has been inserted only in the year 1956. The Ankadedar Tenure Abolition Act is a separate and distinct law and by the sheer operation of Section 4(1)(A)(iii), any person who was tilling Page 128 of 183 HC-NIC Page 128 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT the land or paying land revenue or rent to the Ankadedar prior to the coming into force of the Act in the year 1953, would be entitled to be declared as an occupant. The restriction of new tenure, therefore, is not contemplated under Section 4 of the Act.
67. On the above grounds, it is reiterated that the petitions deserve to be allowed.
Discussion and conclusion:
68. Before this Court deals with the broad contentions raised by learned counsel for the respective parties, it would be pertinent to discuss the relevant provisions of The Bombay Merged Territories (Ankadia Tenure Abolition) Act, 1953. The Ankadia Tenure Abolition Act was enacted to abolish the Ankadia tenure prevailing in certain parts of the State of Bombay such as former States of Baroda, Idar, Balasinor, Malpur, Ambaliara, Lunawada, Deogadh Baria and the former estate of Ramas. It was enacted to extinguish the rights appertaining thereto and to provide for other consequential and Page 129 of 183 HC-NIC Page 129 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT incidental matters. In the present case, we are concerned only with the former State of Baroda, more specifically, village Sherkhi in the State of Baroda, which is mentioned at Item No.14 in the First Schedule of the Act. There is no dispute regarding the fact that village, Sherkhi was an Ankadia village inasmuch as there was an Ankadedar in the village who was holding an Ankadia tenure under the Baroda Ankadia Villages Rules, 1932. There was a system of paying "Ankado", meaning lumpsum payable annually to the Government of the former State of Baroda by an Ankadedar, out of the revenue realized by him from an Ankadia village. As per Section 2(g) of the Act, "Gharkhed land" means the land held by an Ankadedar as his private or personal property. Section 2(h) defines "Jiwai land" to mean land held by a cadet of an Ankadedar's family for the purpose of maintenance. The land that is the subjectmatter of the present petition is neither Gharkhed land nor Jiwai land but falls under Section 4(1)(A)(iii) of the Act. This is the land held by a person who Page 130 of 183 HC-NIC Page 130 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT immediately before the coming into force of the Act was tilling the land and was liable to pay to the Ankadedar land revenue or rent in respect of such land as an incident of Ankadia tenure. As such, the payment of rent or land revenue was an incident of Ankadia tenure and not a private arrangement between the Ankadedar and occupant. It is important to bear this distinction in mind as in the present case, the effect of the Act abolishing Ankadia tenure is at issue qua the occupants of the land and not the rights of the Ankadedar over `Gharkhed' land. Upon the coming into force of this Act, a person who was holding the land and paying revenue or rent to the Ankadedar in respect of such land as an incident of Ankadia tenure was entitled to all the rights and liable for all the obligations in respect of such land directly to the State Government as an occupant under the Code. Meaning thereby, that the obligation of such person to pay rent or land revenue under the Baroda Ankadia Villages Rules of 1932 to the Ankadedar stood extinguished and he was Page 131 of 183 HC-NIC Page 131 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT primarily liable to pay land revenue as an occupant of the land directly to the State Government under the revenue law. It is significant to note that Section 4 does not restrict the occupancy rights of such person in any manner, whatsoever. The right conferred upon such occupant under Section 4(1)(A)(iii) is alienable, transferable, heritable and unrestricted. There is no concept of `grant' or `regrant' of the land and no mention of new tenure or payment of any amount. The said provision of law is crystal clear in this regard.
69. The right conferred under Section 4(1)(A)(iii) of the Act is distinct from that conferred under certain other enactments such as (i) The Bombay Service Inams (Useful to Community) Abolition Act, 1953, (ii) The Bombay Merged Territories (Baroda Watan Abolition) Act, 1953, (iii) The Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950, (iv) The Bombay Bhil Naik Inams Abolition Act, 1955, (v) The Bombay Merged Territories Matadari Tenure Abolition Act, 1953, Page 132 of 183 HC-NIC Page 132 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT and (vi) The Bombay Merged Territories (Baroda Mulgiras Tenure Abolition) Act, 1953, the broad aspects of which are summarised hereinbelow, in order to highlight the distinction.
(i) In the Bombay Service Inams (Useful to Community) Abolition Act, 1953, there is a provision under Section 5 of the said Act, for the resumption of Service Inam land and its re grant to the holder, with the stipulation that if the holder fails to pay the occupancy price within a period of five years, he shall be deemed to be an unauthorised occupant of the land. Thus, there is an obligation to pay the occupancy price within a stipulated period of time and a provision for the regrant of the land, only if such price is paid.
(ii) Further, the Bombay Merged Territories (Baroda Watan Abolition) Act, 1953, also provides, in Section 4, that a Watan land resumed under the provisions of the Act shall be regranted to the holder on payment of the occupancy price equal to six times the amount of Page 133 of 183 HC-NIC Page 133 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT full assessment within a period of five years from the date of coming into force of the Act. Only then would the holder of the land be declared as an occupant within the meaning of the Code. Section 4(2) thereof further provides that the occupancy of the land regranted under subsection (1) shall not be transferable or partible by metes and bounds without the previous sanction of the Collector and except on payment of such amount as the State Government may by general or special order determine. Thus, there is a restriction over the transfer and partibility of the land.
(iii) The Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950, also provides, in Section 4, that the holder of the Watan land would be an occupant provided an occupancy price equal to six times of the amount of the full assessment of such land is paid by the holder of the land for its regrant within a period of five years. The occupancy of the land so regranted shall not be transferable or partible by metes and bounds except without the previous sanction of Page 134 of 183 HC-NIC Page 134 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT the Collector and except on payment of such amount as the State Government may by general or special order determine.
(iv) Similarly, the Bombay Bhil Naik Inams Abolition Act, 1955, provides for occupancy rights in respect of lands in Inam villages and Inam lands with the rider that the occupancy of the land so granted shall not be transferable or partible by metes and bounds without the previous sanction of the Collector and except on payment of such amount as the State Government may, by general or special order, determine.
(v) On the other hand, there are certain other enactments where the holder of the land is held to be an occupant without the imposition of any restriction, such as the Bombay Merged Territories Matadari Tenure Abolition Act, 1953, which provides that in a Matadari estate, the holder of the land would be deemed to be an occupant upon the coming into force of the Act, free from the liability for the payment of any amount in respect thereof to the Matadar as an Page 135 of 183 HC-NIC Page 135 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT incident of Matadari tenure and the rights of a Matadar, in his capacity as Matadar in such land, shall be deemed to have been extinguished.
(vi) In the Bombay Merged Territories (Baroda Mulgiras Tenure Abolition) Act, 1953, in a Mulgiras village, the holder of the land on the coming into force of the Act would be declared as an occupant under the Code, without any restrictions.
70. Different provisions of different enactments are being highlighted only with the purpose of clarifying that upon the coming into force of an enactment abolishing the prevailing system of collection of land revenue through an intermediary as in the present case by the Ankadedar and declaring the holder of the land an occupant, different procedures are prescribed and in some cases, certain conditions are attached. Further, different rights are conferred upon the holders of the land under different statutes, some of which are restricted in the manner prescribed and some which are not. Page 136 of 183 HC-NIC Page 136 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT In some of the enactments noticed hereinabove, there is a provision for the regrant of land, with a restriction upon its transfer.
71. It is of vital importance to understand that in the Scheme of the Ankadia Tenure Abolition Act, with which we are concerned, no restriction has been imposed by the operation of Section 4(1)(A)
(iii) upon the holder of the land who, immediately before coming into force of the Act, was liable to pay land revenue or rent to the Ankadedar in respect of the land, as an incident of Ankadia tenure. The only conditions that are required to be fulfilled are that the person was holding land before the coming into force of the Act and was paying land revenue or rent to the Ankadedar in respect of such land as an incident of Ankadia tenure. The holding of the land is for cultivation and the land revenue or rent is to be paid in respect thereof. If these two conditions are fulfilled, the effect would be that such holder would be primarily liable to the State Government for the payment of land revenue in respect of such land and would be Page 137 of 183 HC-NIC Page 137 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT entitled to all the rights and liable to all the liabilities and obligations in respect of such land as an occupant under the Code or any Act for the time being in force. The Act would operate on its own upon the fulfillment of the above requirements of Section 4(1)(A)(iii). There is absolutely no requirement for any revenue officer or authority to enter into any process of adjudication or determination. The right of occupancy conferred by this provision of law is unrestricted and unfettered by sheer occupation of law. This is evident from a close reading and understanding of the entire Scheme of the Act and, more specifically, of Section 4(1)(A)(iii).
72. It may be noticed that the words "new tenure" do not occur in Section 4(1)(A)(iii) of the Act in respect of the land mentioned therein, therefore, there is no concept of "new tenure"
land in the Act. This is in contradistinction to the Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950, where it is specifically mentioned, in Section 4(1)(b), that after the Page 138 of 183 HC-NIC Page 138 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT regularisation of the occupancy, the land held by such occupant would be of new and impartible tenure. In this Act, as well as the Bombay Bhil Naik Inams Abolition Act, 1955 and the Bombay Merged Territories (Baroda Watan Abolition) Act, 1953, the concept of regranting of the land held by the holder of the land after the payment of occupancy price, prevailed. The requirement is for the payment of the occupancy equal to six times the amount of full assessment of such amount within a period of five years, with a specific rider that the land would be regranted to the holder after complying with the above conditions and would not be transferable or partible by metes and bounds except by the payment of such amount as the State Government by general or special order determine. This introduces the element of the payment of a specified amount, popularly known as `premium'.
The Ankadia Tenure Abolition Act, with which we are concerned, is distinct and separate from the other enactments, inasmuch as there is no concept of regrant or any restriction on the Page 139 of 183 HC-NIC Page 139 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT partibility or transferability of the land held by the occupant or payment of any amount to the State Government. The Act does not contemplate any permission to be accorded by the State Government in respect of the land mentioned in Section 4(1)(A)(iii). The rights that devolve upon the occupant of land under the said provisions of Act are, therefore, absolute and unfettered.
73. Another aspect emerging from a close perusal of Section 4(1)(A)(iii) of the Act is that the holder of the land is automatically made the occupant of such land upon fulfillment of the conditions stipulated therein, by the operation of the Act, itself. There is no provision for the "grant" of the land to the occupant by any authority. It is only the land that is "granted" that can be termed to be "new tenure" land, as is evident from a comparison of the provisions of different enactments in this regard. Land that is not "granted", as in the present case, cannot be termed as new tenure land with its accompanying restrictions. This is clearly the Page 140 of 183 HC-NIC Page 140 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT manner in which the statute operates and no different interpretation of Section4(1)(A)(iii) can be given that does not flow from its clear and unambiguous language.
74. Voluminous record has been produced by the petitioners, which formed the record before the Mamlatdar in the year 1971 and was scrutinised by the said authority before passing the order dated 05.05.1971. The State Government has also produced the record of the survey settlement such as the "Prati Book", "Faisal Patrak", "Aakar Bandh" and "Field Book" as well as extracts from the revenue record. There is no record to show that the subject land is shown to be of new tenure, at all.
75. The Ankadia Tenure Abolition Act came into force on 15.08.1953. There are several extracts of the Village Form No.7/12 on record which do not reflect the land as new tenure land. From the record, Entry No.802 is relevant as it pertains to Village Sherkhi which the subject lands are situated. This revenue entry reflects the entire Page 141 of 183 HC-NIC Page 141 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT survey numbers of village Sherkhi, including those of the land in question, and clearly records the removal of the name of the Ankadedar as a superior holder of the land, as a consequence of the coming into force of the Act. This entry has been certified in November, 1962. The voluminous record reveals that the land in question was cultivated and the names of different occupants have been recorded in the extracts of Village Form No.7/12 produced by both sides. Some extracts of Village Form No.7/12 have been produced at Pages 578 to 580 in respect of the land in question, from which it transpires that different occupants were growing different crops on the lands. Similar is the record of the extracts of Form No.7/12 at Pages 583, 586, 592 and 614. Out of the eighteen parcels of land with which we are concerned, only a portion of Survey No.556/18 was not occupied. This portion, therefore, was mutated in the name of the Forest Department of the State Government. It further appears from the record that even though Entry No.802 was Page 142 of 183 HC-NIC Page 142 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT certified in the year 1962, whereby the effect of the Ankadia Tenure Abolition Act was reflected, the lands in question, though occupied by the holders and cultivated by them as per the revenue record, were shown to be Government "Padtar" lands. Though the name of the Thakore (Ankadedar) was removed as a Superior Holder of the land, however, the full effect of the Act was not given in respect of the lands in question as, it appears, no orders were passed thereunder. As the full effect of the Act in respect of the occupants of the land was not given in the revenue records, somewhere in the year 1962, the occupants of the land in question (eighteen in number) approached the State Government, by way of an application. This application was forwarded by the State Government to the Collector. By a letter dated 31.03.1970 the Collector directed the Mamlatdar to hold a complete inquiry and verify the factual position as per the record and thereafter report to him. Pursuant thereto, the Mamlatdar conducted an inquiry after instructing Page 143 of 183 HC-NIC Page 143 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT the TalaticumMantri to issue notices to all occupants of the lands. The statements of all the occupants were recorded, which are available on record from Page 384 onwards. The statement of the Thakore was also recorded, as well as that of the Talati of village Sherkhi.
76. In his order dated 05.05.1971, the Mamlatdar has recorded that Village Sherkhi was an Ankadia village and upon the abolition of the Ankadia tenure by the coming into force of the Ankadia Tenure Abolition Act on 15.08.1953, the lands of village Sherkhi came under the administration of the State Government. It is further recorded that prior to 15.08.1953, the Thakore of village Sherkhi (Ankadedar) was administering the village as per the Baroda Ankadia Villages Rules, 1932. The Thakore was receiving "Daan" (crop share) with respect to the land of Survey No.556, which is the land in question, and the record was maintained in the Pahni Patrak of the Thakore. The Thakore was maintaining complete accounts, along with names of the persons who were cultivating the land and paying land Page 144 of 183 HC-NIC Page 144 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT revenue or crop share to him. Further, it is stated that upon the coming into force of the Act, the lands were shown as "Padtar" land, "Sarkari Kharaba" or "Gauchar" land in the revenue record as the full effect of the Act was not given in the said record. After thorough inquiry and scrutiny of the revenue records and after recording the statements of the occupants of the lands and the revenue authorities, it was found by the Mamlatdar that the occupants were holders of the land and were cultivating the same. They were paying land revenue or rent to the Ankadedar upon the coming into force of the Act and are still cultivating the land. Consequently, it was held that the holders of the land in question are entitled to be declared as occupants upon the abolition of the Ankadia tenure, as they fulfil the requisite conditions of Section 4 of the Act. Somehow, no steps were take in this direction by the concerned authorities at the relevant point of time which led to the making of the application by them. The Mamlatdar, therefore, found that the holders Page 145 of 183 HC-NIC Page 145 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT of the land are entitled to be declared as occupants with no conditions or restrictions attached, as per the Act. The said order was passed recording the factual position emerging from the inquiry and the entitlement of the predecessors of the petitioners to be given the status of occupants which was wrongfully withheld from them.
77. The entire record that was scrutinised by the Mamlatdar has been produced by the petitioners along with the present petitions. There is a Pahni Patrak maintained by the Thakore (Ankadia) on the record at Page 125/Z, 161, of the year 194748 regarding the land in question wherein, the name of the Thakore is shown and the land of Survey No.556/1 is described as "Gharkhed of Darbar". The name of the cultivator has also been shown.
78. A Government Resolution dated 01.03.1960, was issued regarding the disposal of Government lands. All Collectors were directed to prepare complete lists of Government lands. The list Page 146 of 183 HC-NIC Page 146 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT prepared pursuant to this Government Resolution, which is to be found at Page 767 and the directions at Page 772, does not contain any mention of village Sherkhi. Thus, this aspect also goes to show that the lands of village Sherkhi were not included in the lands of the State Government but were Ankadia lands subject to the provisions of the Act.
79. It is clear from the record that the order dated 05.05.1971 has not been passed by the Mamlatdar as a result of any adjudication under Section 4(1)(A)(iii) of the Ankadia Tenure Abolition Act, which does not provide for any adjudication. The said order is a result of an indepth factfinding inquiry conducted upon the directions of the State Government, through the Collector, in order to verify the claim of the predecessorsintitle of the petitioners as occupants under the Act and to decide whether they are entitled to be considered as occupants under the Act.
80. It has been vehemently submitted by learned Page 147 of 183 HC-NIC Page 147 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT Additional Advocate General that the order of the Mamlatdar is without jurisdiction as the Mamlatdar has no jurisdiction under the Act and the designation of the Mamlatdar is not even mentioned in the said statute. To this end, the Notification dated 16.05.1961, has been pressed into service. This Notification states that in exercise of powers conferred by subsection (1) of Section 2 of the Act, the Government of Gujarat appoints the Prant Officers to perform the functions and exercise the powers of the Collector within the respective jurisdiction under the Ankadia Tenure Abolition Act. Section 2(1)(f) of the Act stipulates that "'Collector' includes an officer appointed by the State Government to perform the functions and exercise the powers of the Collector under this Act". This Notification, therefore, authorises the Prant Officer to perform the duties and exercise the power of the Collector under this Act. The Act is distinct from the Code. Under the entire scheme of the Act, the Collector is mentioned only in a few Sections. The Collector is Page 148 of 183 HC-NIC Page 148 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT mentioned in Sections 6 and 7 in respect of any dispute of an Ankadedar or person other than the Ankadedar regarding the payment of compensation upon extinguishing or modification of any of his rights under the Act where such Ankadedar or person is aggrieved by the extinguishment or the modification of any of his rights in an Ankadia village. In Section 8, it is mentioned that while determining compensation, the Collector appointed under this Section shall ensure that the amount of award does not exceed rupees twentyfive thousand. The role of the Collector is mentioned in Section 4C where he is authorised to decide questions arising under Section 4B pertaining to the conferment of rights of occupation on persons holding under holders of Jiwai land and an appeal against such decision. In the present case, we are not concerned with the conferment of rights of occupation on persons holding under holders of Jiwai land.
81. The issue involved in the petitions is not regarding compensation. Nor does it have Page 149 of 183 HC-NIC Page 149 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT anything to do with the exercise of power by the Collector for which the Prant Officer is authorized by the Notification. The issue is precisely regarding the conferment of occupancy rights under Section 4(1)(A)(iii) upon coming into force of the Act. This provision of the statute would automatically operate upon the fulfillment of the conditions mentioned in clause (iii), namely, that the holder was holding the land immediately before the coming into force of the Act and was paying land revenue or rent to the Ankadedar in respect of such land as an incident of Ankadia tenure. There is no provision for any adjudication by the Collector (read Prant Officer) or any revenue officer under this provision of law. The Notification dated 16.05.1961, therefore, does not, in any manner, affect the power of the Mamlatdar to make an inquiry and pass an order which is a result of a factfinding inquiry and is outside the purview of this provision. The Mamlatdar was not acting under this provision of the statute as is sought to be argued by the Page 150 of 183 HC-NIC Page 150 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT learned Additional Advocate General. On the contrary the inquiry was necessitated by the fact that the effect of this provision was not given in the revenue record. The statutory provision has to operate and when it did not fully operate the inquiry was necessitated with the sole purpose of giving effect to it. There can be nothing illegal about facilitating the effect of the statute.
82. The second Notification dated 16.10.1969, relied upon by the learned Additional Advocate General states that in exercise of power conferred by subsection (4) of Section 4 or Section 2 of the Act, the Government of Gujarat authorises the Prant Officers of Baroda District for the purposes of subsection (4). If the said provisions of Act are read closely, it appears that this Notification pertains to only sub section (4) of Section 2 as there is no sub section (4) to Section 4. Subsection (4) of Section 2 states as under:
"(4) If any question arises as to Page 151 of 183 HC-NIC Page 151 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT
whether any land is Gharkhed or Jiwai the State Government or an officer authorised by the State Government in this behalf shall decide the question; but where an officer authorised by the State Government so decides, the State Government may call for the record of the enquiry or proceedings of such officer for the purpose of satisfying itself as to the legality, propriety or regularity of such enquiry or proceedings and may pass such order thereon as it may think fit; and the decision of the State Government when it decides the matter, or its decision after having called for the record of the enquiry or proceedings, and (subject thereto) the decision of the officer authorised, shall be final."
83. In the present case, there is no dispute regarding whether the land is `Gharkhed' or `Jiwai' land, therefore, there is no question of the Prant Officer, who is the officer authorised by the State Government by virtue of the Notification dated 16.10.1969, determining the issue. The Prant Officer has been appointed for a specific purpose, that is, to decide disputes under Section 2(4) of the Act. No such dispute has arisen in the present case. This case Page 152 of 183 HC-NIC Page 152 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT pertains specifically to the operation of the provisions of Section 4(1)(A)(iii) and the rights of occupancy granted thereunder. It, therefore, cannot be said that the Mamlatdar had no jurisdiction to pass an order in view of the above two Notifications.
84. A careful perusal of Section 4 of the Ankadia Tenure Abolition Act reveals that no adjudication is required for the holders of the land to be declared as occupants thereof upon the fulfillment of the conditions mentioned in clause (iii) of Section 4(1)(A). What has been done by the Mamlatdar is not an adjudication under this provision but a factfinding inquiry to verify whether the holders of the lands in question fulfil those conditions so as to be entitled to be considered as occupants as per the statute that has conferred such entitlement upon them. The Mamlatdar has not adjudicated or determined any issue under this Section for the simple reason that the Section does not call for any adjudication at all. What the law provides for must be done. If the Act confers occupancy Page 153 of 183 HC-NIC Page 153 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT rights upon the persons holding the lands upon fulfillment of the required conditions then the operation of the law cannot be curtailed and the Act must operate fully. Persons who have derived certain rights under the Act such as the predecessors of the petitioners, cannot be denied those rights. What the law confers cannot be taken away by any person or authority, except in accordance with law. In the present case, the learned Additional Advocate General has not been successful in substantiating the claim of ownership of the land in question by the State Government on the basis of any enactment or force of law.
85. Learned Additional Advocate General has submitted that the Collector had no jurisdiction to direct the Mamlatdar to determine any issue under the Act. It is clear from a perusal of the letter dated 31.03.1970, that the Collector has only called for an inquiry and verification to be conducted into the matter as per the revenue record as he, in turn, has been directed to do so by the State Government, to which the Page 154 of 183 HC-NIC Page 154 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT predecessorsininterest of the petitioners had made an application. The Mamlatdar has conducted an inquiry pursuant to the directions of the State Government, as communicated to him by the Collector. He has not passed any order under the Act but has verified the factual position as per the record by recording necessary evidence to find out whether the predecessors of the petitioners were cultivating the land and paying rent or land revenue to the Ankadedar prior to the coming into force of the Act as an incident of Ankadia tenure. The order dated 05.05.1971 is, therefore, not an order under Section 4(1) of the Act or any other provision of the Act but is a result of a fact finding inquiry which the Mamlatdar was authorized to conduct.
86. The above aspect is also borne out by the numerous interse departmental communications that have been placed on record by the petitioners, the purport of which is that a verification should be done and a report made. There is no whisper of any direction for Page 155 of 183 HC-NIC Page 155 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT adjudication or determination of the matter. After conducting the inquiry, the Mamlatdar has stated that the applicants are entitled to be considered as occupants under the Ankadia Tenure Abolition Act. This statement is based upon the voluminous revenue record that was scrutinised by him. Once it is found that the predecessors ininterest of the petitioners were holding lands and cultivating them immediately prior to the coming into force of the act and were paying land revenue or rent to the Ankadedar as an incident of Ankadia tenure, the legal consequences mentioned in Section 4 of the Act would follow and they would be considered as occupants of the land with the full entitlements of an occupant, including the obligation to pay land revenue directly to the State Government. The conferment of occupancy rights upon the predecessors of the petitioners upon fulfillment of the conditions is automatic, by the sheer operation of law and not by any declaration or adjudication by any revenue authority. It was found by the Mamlatdar that the predecessors of Page 156 of 183 HC-NIC Page 156 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT the petitioners were holding the lands in question immediately before the coming into force of the Act, were cultivating them and paying rent and land revenue to the Ankadedar as an incident of Ankadia tenure. This is amply borne out from the record maintained by the Ankadedar which was produced before the Mamlatdar and has been produced before this Court. This aspect is not disputed by the learned Additional Advocate General. However, it is sought to be argued that the `personal' tenants of the Ankadedar over his personal Gharkhed land are not covered by the Ankadia Tenure Abolition Act. In the view of this Court that has been taken after a careful study of the provisions and scheme of the Act, this argument advanced by the learned Additional Advocate General is untenable. The issue involved in these petitions is not whether the land is the "Gharkhed" land of the Ankadedar or not or whether the predecessors of the petitioners were `personal' tenants of the Ankadedar. This argument appears to proceed from a misreading of Page 157 of 183 HC-NIC Page 157 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT the provisions of the Act as there is no concept of `personal' tenants of the Ankadedar. This is not the issue involved in these petitions where we are not at all concerned with Gharkhed or "Jiwai" land. The argument that there was no application by the Ankadedar to declare the land as `Gharkhed' land is, therefore, irrelevant. What is at issue are the occupancy rights over the land that was being cultivated by the holders thereof, in respect of which rent or land revenue was being paid to the Ankadedar as an incident of Ankadia tenure, and the operation of Section 4(1)(A)(iii) of the Act. This subtle distinction is required to be borne in mind for a clear understanding of the issues involved in the cases in hand.
87. It may be correct that in certain extracts of Village Form 7/12, along with the names of the occupants and the description of the crops grown by them, the land has been described as `Padtar' or `Gauchar'. However, this does not mean that the legal consequences of the Ankadia Tenure Abolition Act would not follow. The rights and Page 158 of 183 HC-NIC Page 158 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT entitlements conferred by the operation of law cannot be restricted by entries in the revenue record made for fiscal purposes. This is precisely the reason why the occupants, including the predecessors of the petitioners and even the Thakore himself, approached the State Government as the full effect of the abolition of the Ankadia tenure by the Act, though recorded in the revenue record, was not actually given. There is ample evidence on record to show that the predecessors of the petitioners were tilling the lands prior to 1953 and paying land revenue or rent to the Ankadedar. This record has been considered by the Mamlatdar. The accounts maintained by the Ankadedar have been produced before the Mamlatdar. There are also lease agreements on record, all of which have been examined by the Mamlatdar before passing the order.
88. Learned Additional Advocate General has placed reliance upon several judgments on the aspect of jurisdiction wherein it has been held that an order without jurisdiction is nonest and a Page 159 of 183 HC-NIC Page 159 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT nullity and can be challenged or set aside at any stage and, therefore, no period of limitation would apply to such an order. The principles of law enunciated by the Supreme Court and this Court in the said judgments cannot be disputed on the facts of the cases before the said Courts. However, as in the present case this Court has arrived at the view that the order of the Mamlatdar is not an order without jurisdiction for reasons indicated hereinabove, these judgments would not have any applicability to the facts and in the circumstances of the present case and need not be dealt with in detail.
89. In this view of the matter, as the order of the Mamlatdar is not a result of any adjudication under the Act, this Court is unable to agree with the submissions advanced by the learned Additional Advocate General that the said order is without jurisdiction.
90. As already discussed at length, no restrictions have been imposed upon the right of occupancy Page 160 of 183 HC-NIC Page 160 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT derived by the predecessors of the petitioners under Section4(1)(A)(iii) of the Act regarding impartibility, transferability or heritability. There is nothing in the statute, or even in the revenue record, to remotely suggest that the land in question is of new tenure and the petitioners are liable to pay premium for the said land, as has been held in the impugned order dated 21.03.2012 passed by the Collector, Vadodara, which is impugned in the first set of petitions. The Ankadia Tenure Abolition Act does not contemplate the 'grant' of land to the occupants. On the contrary, occupancy rights would automatically be bestowed upon the occupants if they fulfil the necessary requirements of Section 4(1)(A)(iii).
91. In the order impugned in the first set of petitions, it is stated that the land has been `granted' by the order of 1971 and is of new tenure, therefore,the petitioners are liable to pay premium. The above statement is fallacious. As has been discussed in detail hereinabove, the order dated 05.05.1971, passed by the Mamlatdar Page 161 of 183 HC-NIC Page 161 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT nowhere `grants' the land to the petitioners at all. The word `grant' has not been used in the order. Neither does the tone and tenor of the order imply any type of grant of land. As has been stated earlier, Section 4 of the Act does not contemplate the `grant' of land. The word `grant' that is used by the Collector in the impugned order is, therefore, absolutely contrary to the statute and record as also to the order of the Mamlatdar itself. The Collector further proceeds to state in the impugned order that because the land has been `granted' it is required to be considered as of new tenure. This statement is a fallacy based on a wrong premise as Section 4(1)(A) does not contemplate grant of the land and confers unrestricted occupancy rights upon the holders of the land. When the statute does not contemplate the `grant' of land, the Mamlatdar could hardly have said so. In fact, he has not said so at all in his order. The statement made by the Collector in the impugned order is not only erroneous and unjustified but contrary to the provisions of Page 162 of 183 HC-NIC Page 162 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT the Ankadia Tenure Abolition Act as well as the voluminous record. The provisions of the Act have been discussed at length in juxtaposition with the provisions of several other Acts wherein certain restrictions have been envisaged to clearly show that there is no concept of "new tenure" in the subject lands of which the holders under the Act become occupants upon fulfillment of certain conditions as contemplated under Section 4(1)(A)(iii) of the Act. The Mamlatdar has merely examined the record after an indepth inquiry and stated that the predecessors of the petitioners were cultivating the land and paying land revenue and rent to the Ankadedar, therefore, they are entitled to be considered as occupants of the land. Upon being considered as occupants, no new conditions such as `grant' or "new tenure", that are not contemplated in Section 4(1)(A)
(iii) of the Act, can be indirectly inserted, as is sought to be done by the Collector in the impugned order. After a thorough and careful study of the provisions of the Act and the Page 163 of 183 HC-NIC Page 163 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT revenue record, this Court has no hesitation in holding that there is no `grant' of land by the Mamlatdar vide the order dated 05.05.1971. The land definitely is not of "new tenure" and there is nothing on record to the contrary. Consequently, no liability can be imposed upon the petitioners to pay premium. The impugned order of the Collector, apart from being contrary to the Act and the record, is not supported by any legal provisions and is, therefore, exfacie illegal and unsustainable in law.
92. The record reveals a very interesting aspect of the matter in the shape of a letter dated 11.02.2015 written by the Collector, Vadodara, to the Principal Secretary, Revenue Department, regarding the land in question. It is stated therein that the lands in question have been purchased by the present petitioners and the matter is subjudice. It is stated that the petitioners have purchased the land from the occupants and are bona fide purchasers, therefore, in the event that the High Court Page 164 of 183 HC-NIC Page 164 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT takes a decision adverse to the State Government, there would be a loss to the State Government. Therefore, the amount of premium may be accepted from the petitioners. This letter is to be found at Page 125/Z2 and is being mentioned only because it may be indicative of the reason why the State Government issued the impugned order stating the the lands are new tenure and subject to payment of premium. The letter further indicates that in the opinion of the Collector, it would not be appropriate to take the order of the Mamlatdar dated 05.05.1971 under revisional jurisdiction. However, it stated that the demand of premium is made in order to avoid financial loss to the State Government. Though this letter cannot be treated as an order, its contents reveal the thought process of the authorities. It clearly flows from this letter that the demand for premium is not based upon any provision of any statute and has no legal basis.
93. It has been forcefully submitted by the learned Additional Advocate General that internal Page 165 of 183 HC-NIC Page 165 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT communications are not orders and no reliance can be placed upon them. In this regard, the judgment in the case of Transmission Corporation of Andhra Pradesh Limited And Another v. Sai Renewable Power Private Limited And Others (supra), has been cited. The proposition of law enunciated by the Supreme Court in the above judgment cannot be disputed and neither is the Court holding that the above mentioned letter of the Collector is an order. However, it is only being mentioned to indicate that the stand taken by the Collector in the impugned order, which is a reflection of the contents of the letter, is not based upon any provision of a statute, leave alone the Act.
94. The first set of petitions has been filed challenging the order of the Collector, treating the land as new tenure land and directing that the petitioners pay premium thereupon. In the affidavitinreply to this set of petitions the Collector has done a complete volte face and adopted a totally new stand which is not even remotely reflected in the impugned order. It is Page 166 of 183 HC-NIC Page 166 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT now stated in the affidavitinreply that the lands in question are of the ownership of the State Government. This stand is absolutely contradictory to the stand taken in the impugned order, even though it transpires from the above discussion that the stand taken in the order is found to be incorrect.
95. In support of the new stand taken by the State Government, certain revenue records have been appended, comprising of (i) the Revision Field Book of year 1908 to show that the land in question has been mentioned as "Sarkari Gauchar", (ii) the Prati Book stated to be of the year 1912 in the affidavitinreply, (iii) the Faisal Patrak of the year 194849 in which the land is shown as `Padtar' land and (iv) the Aakar Bandh for the year 1916 where the land in question is shown as "Sarkari Kharaba". Learned Senior Counsel for the petitioners has produced "The Bombay Survey and Settlement Manual" by R.G. Gordon, I.C.S, Volume II, in which the Revision Field Book, Prati Book, Faisal Patrak and Aakar Bandh, with the corresponding Page 167 of 183 HC-NIC Page 167 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT vernacular terminology, have been mentioned. On the basis of this manual, it has been submitted that the record produced by the State Government is regarding survey and settlement and it is not a revenue record evidencing the rights of parties. The Revision Field Book, Prati Book, Faisal Patrak and Aakar Bandh are all survey documents used for the purpose of survey and settlement and do not pertain to the record of rights. This appears to be the correct position from the record and, moreover, this assertion has not been disputed by the learned Additional Advocate General. Neither has anything to the contrary been produced by him.
96. It may be noted that the Revision Field Book pertains to the year 1908 and the Prati Book to the year 1912. These records are prior to the Baroda Ankadia Villages Rules, 1932. The Act abolishing Ankadia tenure came into force in the year 1953. It, therefore, logically follows that the record prior to that period, namely 1932 to 1953, especially the settlement and survey record, would not be relevant in order to Page 168 of 183 HC-NIC Page 168 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT determine the ownership or occupancy of the land in question. It is only upon the coming into force of the Rules that a person would become an Ankadedar and Ankadia tenure would commence. Once there was an Ankadedar under the Rules he, himself, maintained the record of the entire Ankadia village from 1932 to 1953, when the Ankadia tenure was abolished by the coming into force of the Act. This entire record has been produced by the Thakore (Ankadedar) before the Mamlatdar of village Sherkhi. The detailed accounts maintained, the leases granted, and the rent received by him, are all on record and pertain to the year 1951. This record is in respect of the land in question, and can be found at Pages 448 and 450 of Special Civil Application No.4971 of 2012. The revenue record from 1953 onwards, although reflects the name of the State Government, also records the names of the occupants of the lands in question and the details of the crops being grown by them. The entire dispute of the occupants was that the name of the State Government was continuing in Page 169 of 183 HC-NIC Page 169 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT the record even after 1953 and the effect of the abolition of Ankadia tenure, though recorded in the Entry No.802, and certified in the year 1962, was not actually given. This is the reason why the occupants of the land approached the State Government, requesting to be given their just entitlements under the Act.
97. Another relevant aspect is that under the Ankadia Tenure Abolition Act, the State Government cannot assume any other land except of the nature and description mentioned in Section 5. The purport of Section 5 is that all uncultivated and waste lands, whether assessed or unassessed, and all other kinds of property referred to in Section 37 of the Code, situated in an Ankadia village, which are not the property of individuals or of any aggregates of persons legally capable of holding property, except insofar as any rights of such persons may be established in or over the same, and except as may be otherwise provided by law, would be the property of the State Government and it would be lawful for the State Government to Page 170 of 183 HC-NIC Page 170 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT dispose of the said property as provided in Sections 37 or 38 of the Code. Sections 37 and 38 of the Code speak of all public roads, lanes and paths, bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and harbours and creeks below the high watermark, rivers, streams, nallas, lakes, tanks, all canals and water courses, all standing and flowing water and all lands, wherever situated, to be the property of the State Government. A perusal of Section 5 of the Ankadia Tenure Abolition Act as well as Section 37 of the Code amply illustrates that the State Government cannot claim any right of ownership in respect of property other than what is mentioned in the said provisions. It cannot, therefore, assert its right over private property or the property over which any individual can claim legal rights flowing from a statute, such as in the present case. The lands in question do not fall under the description of property mentioned in Section 5 of the Act or Section 37 of the Code, therefore, the State Government cannot claim Page 171 of 183 HC-NIC Page 171 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT ownership over them as is sought to be done by filing the affidavitinreply. The mention of the State Government in the record of survey and settlement record from the year 1908, much before the coming into force of the Rules in the year 1932 and the continuance thereof after the abolition of the Ankadia tenure in the year 1953 onwards, does not make the State Government the rightful owner of the lands in question. There is absolutely no dispute regarding the fact that the said lands fall under an Ankadia village and were governed by the Baroda Ankadia Villages Rules of 1932 and, thereafter by the Act. The purpose of the factfinding exercise conducted by the Mamlatdar was to verify whether the predecessors of the petitioners are entitled to be declared as occupants as envisaged by Section 4(1)(A)(iii) of the Act. It was found that they were holding and cultivating the land prior to the coming into force of the Act and were paying rent or land revenue to the Ankadedar. By the operation of law, they are entitled to be the occupants of the land in question. The effect Page 172 of 183 HC-NIC Page 172 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT and operation of law cannot be impeded by any person or authority, including the State Government. Moreover, no claim de hors the statute and the law can be maintained by the State, especially when such claim has no legal basis.
98. There is no denial by the State Government to the fact that the lands in question were governed under the Baroda Ankadia Villages Rules of 1932 and the Ankadia Tenure Abolition Act and, therefore, had to be dealt with in accordance with the provisions of the Act upon the abolition of Ankadia tenure. The record prior to 1932 has no relevance or consequence as Ankadia tenure had not come into force before 1932. Rights under Ankadia tenure arose between 1932 to 1953. They are governed by the Ankadia Tenure Abolition Act which is a special legislation conferring distinct rights. Revenue entries, wrongfully inserted during the relevant period of time or carried forward, do not confer ownership rights upon the State Government when such rights are not derived from any statute and Page 173 of 183 HC-NIC Page 173 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT the lands are specifically covered by the enactment of law. It is a settled position of law that revenue entries are mutated for fiscal purposes and are not indicative of the title of the person in whose name they are mutated. From the entire discussion the only conclusion that emerges is that the State Government cannot seek to appropriate to itself lands to which it is not legally entitled under law, upon which individuals such as the predecessors of the petitioners have been conferred legal rights by a valid statute.
99. The issue that now arises is whether the State Government could have changed its stand midway through the litigation. The stand of the State Government when the petitions were filed, as reflected in the impugned order, is that the land in question had been `granted' by the Mamlatdar and was of "new tenure", therefore, premium was liable to be paid for it. A detailed discussion regarding this stand has already taken place and the said stand has been found to be incorrect as there was never any `grant' Page 174 of 183 HC-NIC Page 174 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT of land by the Ankadedar and consequently, it cannot be said to be of "new tenure". Further, the record contains no such endorsement. Midway through the litigation, the State Government thought it fit to change its stand by filing an affidavitinreply in which it now claims ownership over the lands in question. The affidavitinreply has been filed by the Collector, the very same authority who has passed the impugned order. Both the stands of the State Government, as reflected in the impugned order and the affidavitinreply are mutually contradictory. Whether the State Government can be permitted to adopt a totally different stand by way of an affidavitinreply or not, is answered by the Supreme Court in the case of Mohinder Singh Gill And Another v. The Chief Election Commissioner, New Delhi And Others (supra), in the following terms:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by Page 175 of 183 HC-NIC Page 175 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16) (at p. 18):
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself".
Orders are not like old wine becoming better as they grow older."
(emphasis supplied)
100. The above principles of law enunciated by the Apex Court have stood the test of time and judicial scrutiny and are still firmly entrenched in our jurisprudence. Viewed in the light of these principles, the change of stand by the State Government in the affidavitin Page 176 of 183 HC-NIC Page 176 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT reply is unsustainable in law. Normally, the Court would be within its rights to discard such a stand without going into it. However, this Court has examined the new stand on its own merits and found it to be legally untenable. Learned Additional Advocate General has not touched upon this legal aspect in his arguments or refuted this position of law.
101. Learned Additional Advocate General has submitted that a delegatee, meaning the Collector, cannot delegate his powers to the Mamlatdar, therefore, the order of the Mamlatdar is bad on this count. Several judgments have been cited by him on this aspect. The principles of law enunciated by the Supreme Court and other Courts in the above judgments cannot be disputed on the facts of those cases. However, in the present case, as has been discussed earlier, there is no delegation of power as the Collector has merely asked the Mamlatdar to conduct a factfinding inquiry regarding the claims of the predecessors of the petitioners who demanded Page 177 of 183 HC-NIC Page 177 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT their just entitlements under the Act. This was done on the direction of the State Government. No power under any statute was exercised by the Collector in the first place, therefore, none could have been delegated to the Mamlatdar. A direction to conduct a factfinding inquiry does not require the delegation of statutory power. This submission advanced by the learned Additional Advocate General, therefore, cannot be accepted.
102. Regarding the second set of petitions wherein the showcause notice has been challenged, it follows that once it is held by the Court that the order of the Mamlatdar is not an order without jurisdiction, the aspect of limitation would immediately come into play and the law in this regard would apply. It is not disputed that the showcause notice has been issued after a period of fortyfour years from the passing of the order by the Mamlatdar. As such, it is clearly hit by delay. There is no explanation for this massive delay, whatsoever. In accordance with the settled legal position Page 178 of 183 HC-NIC Page 178 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT propounded by the Supreme Court in a catena of judgments that have been referred to on behalf of the petitioners, exercise of power after an unreasonable period of time is bad in law. On this ground alone, this Court is of the view that the impugned showcause notice deserves to be quashed and set aside.
103. One of the grounds mentioned in the showcause notice is regarding the jurisdiction of the Mamlatdar, which aspect has already been discussed earlier.
104. There is another aspect to the matter which is that, the petitioners are the purchasers of the land in question. They have entered into sale transactions after examining the revenue record wherein the land has clearly been mentioned as old tenure land. They have paid consideration to the occupants of the land from whom they have purchased it. The Sale Deeds executed by the petitioners are legal and valid and, by the passage of time, equities have arisen in their favour. The petitioners have incurred Page 179 of 183 HC-NIC Page 179 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT expenditure upon the land and maintained it till now. The Sale Deeds executed in favour of the petitioners have not been challenged by any person in any Court of law. It is a settled position of law that the authorities are bound to mutate entries with regard to a registered document in the revenue record. As such, the entries with regard to the registered Sale Deeds of the petitioners are required to be maintained. As of today, the petitioners are the legal and valid owners of the land in question until otherwise proved legally by any person disputing this aspect. Under the circumstances, the State Government cannot trample upon the legal rights of the petitioners by laying claim to the land. To do so would amount to unjust enrichment, which motive the Court would not like to attribute to a Welfare State. Perhaps, the officers of the State government have acted with enthusiasm that does not find the support of law. The State is required to act fairly and impartially and it can only claim what is legally due to Page 180 of 183 HC-NIC Page 180 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT it. It is not expected to appropriate the property to which its citizens are legally entitled under law.
105. It has been submitted on behalf of the learned Additional Advocate General that a petition against a showcause notice is not maintainable, especially after the petitioners have participated in the said proceedings. When it is found that the proceedings of the show cause notice are themselves without jurisdiction, the petitioners cannot be prevented from challenging the showcause notice in the Court.
106. The showcause notice has been issued under Section 211 of the Code. The order of the Mamlatdar has not been passed under any provision of the Code, but in a factfinding inquiry. Revisional power under Section 211 cannot be exercised in relation to an inquiry under the Ankadia Tenure Abolition Act. The very genesis of the showcause notice is flawed and unsustainable in law. Hence, the showcause Page 181 of 183 HC-NIC Page 181 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT notice deserves to be quashed and set aside. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai And Others (supra), the Supreme Court has upheld a challenge to a showcause notice on the ground of lack of jurisdiction. Participation in proceedings lacking jurisdiction would not prevent the petitioners from challenging the said notice. The judgment is squarely applicable to the present case.
107. It has also been submitted by the learned Additional Advocate General that a Writ of Mandamus as prayed for cannot be issued in a case such as the present one. However, what appears to have been missed by the learned Additional Advocate General is the prayer to issue an "appropriate Writ or direction". The Court is not precluded from exercising its wide jurisdiction under Article 226 of the Constitution of India when the case so demands.
108. The cumulative effect of the above discussion is that in the considered view of this Court, the impugned order(s) dated 21.03.2012, passed Page 182 of 183 HC-NIC Page 182 of 183 Created On Sat May 06 00:24:33 IST 2017 C/SCA/4971/2012 CAV JUDGMENT by the Collector, Vadodara, in the first set of petitions and the showcause notice(s) dated 05.03.2015, issued by the Collector, Vadodara, in the second set of petitions, being unsustainable in law deserve to be quashed and set aside. Accordingly, they are quashed and set aside.
109. The petitions are allowed. Rule is made absolute, accordingly, in each petition. Parties to bear their own costs.
(SMT. ABHILASHA KUMARI, J.) Mr.J.K.Shah, learned Assistant Government Pleader, prays for the stay of this judgment. For the reasons stated in the judgment, the request is declined.
(SMT. ABHILASHA KUMARI, J.) sunil Page 183 of 183 HC-NIC Page 183 of 183 Created On Sat May 06 00:24:33 IST 2017