Gujarat High Court
Raliyatben Popatbhai Thummar vs State Of Gujarat on 8 June, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/478/2016 JUDGMENT DATED: 08/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 478 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
RALIYATBEN POPATBHAI THUMMAR
Versus
STATE OF GUJARAT & 7 other(s)
==========================================================
Appearance:
MR PJ KANABAR(1416) for the Petitioner(s) No. 1
MR JK SHAH AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1,2,3,4,5,7,8
UNSERVED EXPIRED (R) for the Respondent(s) No. 6
==========================================================
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 08/06/2022
ORAL JUDGMENT
1. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 08.10.2015 passed by the Special Secretary, Revenue Department (Appeals) (hereinafter referred to as "the learned Secretary") and the order dated 27.09.2013 passed by the Collector.
2. The petitioner is aggrieved by the two orders by which, entry nos.1616 and 1617, both dated 27.02.1986, were taken in suo motu revision and have been quashed and set aside.
Page 1 of 13 Downloaded on : Sat Dec 24 18:26:14 IST 2022C/SCA/478/2016 JUDGMENT DATED: 08/06/2022
3. Tersely stated are the facts.
3.1. The issue revolves around the land bearing survey no.197 paiki. According to the petitioner, respondent nos.7 and 8, being minors, at the relevant point of time, through their guardian Smt.Prabhaben Dhirubhai Nakrani, purchased a piece of agricultural land of Village: Bagasra bearing revenue survey no.197 paiki admeasuring 6 acres and 2 gunthas vide registered sale deed dated 10.03.1981. Similarly, the respondent no.6, the father of the respondent nos.7 and 8, purchased the land admeasuring 7 acres and 39 gunthas of Village: Bagasra. The respondent no.4, subsequently purchased the said land admeasuring 6 acres from the respondent nos.7 and 8 vide registered sale deed dated 22.05.1984. Similarly, respondent no.5, being minor, through his natural guardian and father i.e. respondent no.4, purchased the land admeasuring 7 hectors and 39 gunthas from its owner i.e. respondent no.6 vide registered sale deed dated 22.05.1984.
3.2. The sale transaction in favour of the respondent nos.4 and 5 was entered in the revenue record vide entry nos.1616 and 1617, both dated 27.02.1986. After following due procedure, both the entries were certified on 02.04.1986 of which, there is no dispute. The petitioner, on 18.05.1999, vide two registered sale deed nos.270/1999 and 271/1999, purchased the land bearing survey no.197, admeasuring Acre-6-00 gunthas and Acre-8-01 gunthas respectively. Entry nos.2752 and 2751 respectively, were posted in the revenue record on 25.05.1999 and were certified on 10.09.1999 (hereinafter referred to as "the land in question").
3.3. Subsequently, according to the petitioner, the respondent no.2 i.e. the Collector, after more than 26 years of certification of the entry nos.1616 and 1617, initiated suo motu proceedings by Page 2 of 13 Downloaded on : Sat Dec 24 18:26:14 IST 2022 C/SCA/478/2016 JUDGMENT DATED: 08/06/2022 issuing show-cause notice dated 27.11.2012. By the said show- cause notice, the private respondents were required to show cause as to why, entry nos.1616 and 1617, both dated 02.04.1986, shall not be taken in suo-motu revision. As per the show-cause notice, the private respondents were required to produce on record the evidence in support of they being khedut khatedar. The show-cause notice culminated into passing of the order dated 27.09.2013 by the Collector. The grievance of the petitioner is that everything was available with the Collector; however, the Collector chose not to issue any notice to the petitioner and proceeded to pass the order, cancelling the entry nos.1616 and 1617.
3.4. The petitioner being aggrieved, preferred revision application before the learned Secretary raising various contentions including the contention that the order passed by the Collector is in violation of the principles of natural justice inasmuch as, the petitioner has not been heard and the order has been passed without offering any opportunity to her. The learned Secretary passed the order dated 08.10.2015, rejecting the revision application and confirmed the order dated 27.09.2013 passed by the Collector. Hence, the present writ petition.
4. Mr.P.J. Kanabar, learned advocate for the petitioner has made submissions along the lines of the averments made in the present writ petition. It is submitted that entry nos.1616 and 1617 were posted in the revenue record in the year 1986 and were certified; however, no steps were taken for cancellation of the said entries and it is only after almost a period of 26 years, that the Collector, while exercising the suo motu powers, has cancelled the entries. It is submitted that the action on the part of the Collector is beyond the reasonable period and therefore, impermissible in law. It is submitted that the orders passed by the Collector so also, the Page 3 of 13 Downloaded on : Sat Dec 24 18:26:14 IST 2022 C/SCA/478/2016 JUDGMENT DATED: 08/06/2022 learned Secretary, are contrary to law laid down by the Apex Court as well as by this Court. It is submitted that it is well settled proposition of law that wherever power is vested in a statutory authority without prescribing any time limit, such power should be exercised within a reasonable period. It is equally well settled that where no time limit is prescribed for exercise of power under the statute, it does not mean that it can be exercised at any point of time; such power has to be exercised within a reasonable time. It is submitted that clearly, the entries were posted in the revenue record in the year 1986 whereas, the powers have been exercised by the Collector, by issuing the show-cause notice, in the year 2012.
4.1. It is next submitted that the petitioner has purchased the land in the year 1999 and necessary entries were posted in the revenue record and were certified after following due procedure; while the proposal appears to have been made in the year 2006 by the circle officer. All the documents, namely, 7/12 form and 8A form, pertaining to the present petitioner were made available; however, the Collector chose not to intimate the petitioner about the proceedings for cancellation of the entry nos.1616 and 1617. It is submitted that the notices were issued to the private respondents; even the private respondents chose not to join the petitioner as a party respondent in the proceedings. It is submitted that therefore, the order dated 27.09.2013 passed by the Collector is behind the back of the petitioner and therefore, in violation of the principles of natural justice.
4.2. It is further submitted that the petitioner was enjoying the credit facilities from Amreli District Central Co-operative Bank, Bagasra and when approached the bank, she came to know about the order dated 27.09.2013 passed by the Collector. It is submitted that the petitioner obtained the certified copies and thereafter, Page 4 of 13 Downloaded on : Sat Dec 24 18:26:14 IST 2022 C/SCA/478/2016 JUDGMENT DATED: 08/06/2022 preferred the revision application before the learned Secretary. It is submitted that specific contention was raised before the learned Secretary about passing of the order without impleading the petitioner; however, the learned Secretary did not consider or accept the same and proceeded to pass an order, confirming the order of the Collector.
4.3. Turning towards the reasoning given by the Collector in its order dated 27.09.2013, it is submitted that the notices were issued, requiring the private respondents to place on record the evidence in support of they being khedut khatedar, the Collector was satisfied about the status of the private respondents but, proceeded to pass the order on the ground that no permission has been obtained of the competent authority. The Collector was of the further opinion that the transactions have been executed on behalf of the minors; however, no order from the competent authority under the provisions of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as "the Act of 1956") has been obtained.
4.4. It is further submitted that the show-cause notice does not make a reference of any permission of the competent authority and therefore, the Collector had gone beyond the show-cause notice, while passing the order dated 27.09.2013. It is submitted that even otherwise, it is well settled that the authority, while dealing with the RTS proceedings, cannot determine or adjudicate the status of agriculturist. The authorities also could not have determined as to whether, any permission was obtained of the competent authority or could have adjudicated the issue of breach of the provisions of the Act of 1956. It is submitted that therefore, on merits also, the order of the Collector dated 27.09.2013 is illegal and bad.
4.5. While referring to the order of the learned Secretary, it is Page 5 of 13 Downloaded on : Sat Dec 24 18:26:14 IST 2022 C/SCA/478/2016 JUDGMENT DATED: 08/06/2022 submitted that the petitioner, undisputedly, was not heard though, the petitioner was affected by the order of the Collector because, if the entry nos.1616 and 1617 go, subsequent entries in favour of the petitioner would also go. It is submitted that the title of the petitioner accordingly, would be tainted and she will not be in a position to enjoy the property. It is submitted that the learned Secretary did not accept the contention of the petitioner that the proceedings have been initiated after a period of 26 years. While confirming the order of the Collector, it relied upon the judgment of this Court in the case of Saburbhai Hemabhai Chauhan vs. State of Gujarat passed in Special Civil Application No.5982 of 1997. It is submitted that the learned Secretary was of the opinion that if the order is void ab initio, the proceedings can be initiated at any point of time and limitation will not apply. It is submitted that the judgment has been relied upon without discussing the facts of the said case. The facts of the present case are distinct; the principle, which has been laid down in the said judgment, cannot be made applicable to the facts of the present case. In the said case, the transaction was itself impermissible in law which weighed with this Court. Under the circumstances, it did not entertain the writ petition. It is therefore, urged that on all counts, the orders passed by the authorities are illegal and cannot be sustained and therefore, deserve to be quashed and set aside.
5. Mr.Jashwant Shah, learned Assistant Government Pleader, while supporting the orders passed by the authorities, submitted that no error can be said to have been committed in passing the orders. It is submitted that the transaction has been executed without taking any permission which, the private respondents, were otherwise, obliged to do so. It is submitted that the transactions have been executed in favour of the minors; however, no permission under the provisions of the Act of 1956 has been placed on record Page 6 of 13 Downloaded on : Sat Dec 24 18:26:14 IST 2022 C/SCA/478/2016 JUDGMENT DATED: 08/06/2022 and therefore, in absence of any permission, the Collector concluded that the entry nos.1616 and 1617 are not in conformity with the provisions of the Act of 1956 and therefore, rightly cancelled the entries. It is submitted that the learned Secretary, considering the case of the petitioner so also, the respondents, has given detailed findings. It cannot be said that it has committed any error. It is therefore, urged that the petition is devoid of merits and does not deserve to be entertained and the orders passed by the authorities below may not be interfered with.
6. Though served, the private respondents have chosen not to enter appearance. Hence, none present for the private respondents.
7. Heard the learned advocates for the respective parties and perused the material available on record.
8. The facts, as can be discern out from the captioned writ petition, are that the lands in question were initially purchased by the respondent nos.6 to 8 and thereafter, by the private respondent nos.4 and 5. So far as the purchase by respondent nos.4 and 5 is concerned, entry nos.1616 and 1617 were posted in the revenue record and were certified after verifying the records. The certification is not disputed. Subsequently, somewhere in the year 1999, the petitioner, vide registered sale deed, both dated 18.05.1999, purchased the land in question from the respondent nos.4 and 5 on payment of consideration and as a result whereof, entry nos.2751 and 2752, both dated 25.05.1999, were posted in the revenue record and were certified on 10.09.1999 with no objection. Since the petitioner was enjoying the credit facilities from Amreli District Central Co-operative Bank, Bagasra, when she visited the bank, realised about the fact of passing of the order dated 27.09.2013 of the Collector.
9. Accordingly, the petitioner applied for the certified copy and Page 7 of 13 Downloaded on : Sat Dec 24 18:26:14 IST 2022 C/SCA/478/2016 JUDGMENT DATED: 08/06/2022 preferred revision application before the learned Secretary. One of the contentions raised by the petitioner was that the order passed by the Collector is behind her back; without hearing her. The petitioner, also raised the ground, that while posting the entry nos.1616 and 1617, there is a specific reference/endorsement in the revenue record. In vernacular and english translation whereof, would be "the purchaser is the khedut khatedar of Village: Medarda, vide account no.331." It was the case of the petitioner that the Collector has initiated the suo motu proceedings on the basis of the report of the RTS team which conducted the investigation and therefore, everything was available with the Collector. The Collector ought to have given opportunity to the petitioner and pass the order; however, without there being any notice issued to the petitioner, the Collector proceeded to pass the order and cancelled the entry nos.1616 and 1617. It was also the case of the petitioner before the learned Secretary that the finding as regards the limitation of 8 km. distance was erroneous as, vide amendment in the year 2001, the said limitation has been given go- bye. The reasoning given by the Collector that the permission from the competent authority is missing, was not the subject matter of notice issued and the notice was limited only to determine the status of the private respondents, of the agriculturists. All the relevant grounds were raised before the learned Secretary; however, it, without considering the facts, rejected the revision application. What weighed with the learned Secretary is that the respondents have stated in their reply that the land of Village: Mendarda is at the distance of 45 kms., which argument cannot be accepted considering the time. The learned Secretary, while not accepting the contention about the action taken by the Collector beyond reasonable time, relied upon the judgment in the case of Saburbhai Hemabhai Chauhan (supra) and concluded that if the transaction is Page 8 of 13 Downloaded on : Sat Dec 24 18:26:14 IST 2022 C/SCA/478/2016 JUDGMENT DATED: 08/06/2022 void ab initio or non-est, since inception, then, the issue of limitation will not apply. This Court is of the opinion that the order of the learned Secretary is erroneous and deserves to be quashed and set aside, for the reasons discussed hereinbelow.
10. Pertinently, the entry nos.1616 and 1617 were posted in the revenue record in the year 1986 and were certified; however, no steps were taken till the year 2006. It is only when the RTS team inspected and investigated, proposal was sent to the Collector and the Collector, on the basis whereof, has initiated suo motu proceedings. A bare perusal of the notice issued by the Collector suggests that the suo motu proceedings were initiated on the ground that the private respondent nos.4 and 5 have not been able to produce any evidence in support of they being khedut khatedar. Therefore, the show-cause notice was limited as to the private respondent nos.4 and 5 being not khedut khatedar. The Collector, while passing the order, has clearly recorded that considering the documents and, more particularly, entry nos.309, 685, 4057, 4058 and 4059, Vashrambhai Lakhmanbhai Borad is the khedut khatedar of Village: Mendarda. The Collector accepted the status of agriculturist of the respondent no.4. Even the breach of the provisions of 8 kms., did not weigh with the Collector, as the said finding was in wake of the amendment in the year 2001 giving a go- bye to the restriction of 8 kms. The Collector thereafter, has observed that the respondent no.5, being a son, is not an agriculturist and has not produced any certificate of the competent authority substantiating the fact that he is an agriculturist. The Collector further noted that the respondent no.5 has not appeared before him and has not produced any document and therefore, entry nos.1616 and 1617 deserve to be quashed and set aside. The Collector, in the last paragraph, has observed that the entry no.1617 (sic 1641) dated 27.02.1986 has been posted in the Page 9 of 13 Downloaded on : Sat Dec 24 18:26:14 IST 2022 C/SCA/478/2016 JUDGMENT DATED: 08/06/2022 revenue record; without taking any prior permission of the competent authority under the Act of 1956 and, more particularly, Section 8. It being not in conformity, with the provisions of the Act of 1956, led the Collector, to quash and set aside the entry nos.1616 and 1617.
11. In the present case, the transaction is of the year 1986 whereas, the action has been taken by the Collector in the year 2012 by issuing the show-cause notice. It is required to be noted that the initial transaction was of the year 1986 and thereafter, till the year 2006, no steps were taken. When, the circle officer had prepared a report in the year 2006, it was open to the authorities concerned to have taken action; however, no action was taken till the year 2012. Hence, there is a delay of almost 6 years from the date of proposal of the circle officer. In the opinion of this Court, it was impermissible to the Collector to have initiated proceedings after the unreasonable delay of more than 26 years and consequential passing of the order. Such action would be against the well settled principles of law laid down by the Apex Court as well as by this Court. Hence, the action taken by the Collector deserves to be quashed and set aside.
12. Issue is no longer res-integra. It is well established that wherever, a power is vested in a statutory authority, without prescribing any time limit, such power should be exercised within a reasonable time. In the judgment of the Apex Court in the case of Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim reported in (1997) 6 SCC 71, the principle has been reiterated. The Apex Court, while referring to the judgment in the case of State of Gujarat vs. Patil Raghav Natha and in the case of Ram Chand vs. Union of India, pointed out that where no time limit is prescribed for exercise of a power under a statute, it does not mean that it can be exercised at Page 10 of 13 Downloaded on : Sat Dec 24 18:26:14 IST 2022 C/SCA/478/2016 JUDGMENT DATED: 08/06/2022 any time; such power has to be exercised within a reasonable time. Paragraph 2 reads thus:-
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 84-C 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 time-limit, such power should be exercised within a reasonable time. In the present case the transfer took place as early as in 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 84-C 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 time-limit 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 84-C 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.
13. Perceptibly, the learned Secretary did not accept the contention of the petitioner about action having been taken beyond the reasonable period. The learned Secretary placed reliance on the judgment of Saburbhai Hemabhai Chauhan (supra). As has been rightly pointed out by Mr.P.J. Kanabar, learned advocate for the Page 11 of 13 Downloaded on : Sat Dec 24 18:26:14 IST 2022 C/SCA/478/2016 JUDGMENT DATED: 08/06/2022 petitioner that the said judgment has no application to the facts of the present case. In the said case, the petitioner had purchased the land through the registered sale deed, claiming to be an Adivasi. The proceedings were initiated after a period of 15 years which culminated into forfeiture of the land in the State Government. Since the petitioner therein could not succeed before the revenue authorities, filed a writ petition before this Court challenging the orders of the revenue authorities. Contention was raised that initiation of belated action, that too, after 15 years, was not permissible. Clearly, the sale deed in the said case was executed in breach of the provisions of the Act and therefore, this Court held and observed that when the initial transaction itself is void ab initio, limitation would not apply. So far as the present case is concerned, it is not even the case of the state Government that the land is of a restricted nature. It is nobody's case that the transaction was non- est or void ab initio. The transaction was executed by the respondent nos.6 to 8 in favour of the respondent no.4, an agriculturist and respondent no.5, the son. Entries whereof, were posted in the revenue record, followed by certification by the revenue authorities concerned. It is not that the authorities were not aware about execution of the sale deed and subsequent posting of the entries in the revenue record. If at all, the authorities were of the opinion that the transaction is not in conformity with the provisions of the Act of 1956, it should have promptly taken the steps.
14. The orders also deserve to be interfered with on the ground of it having passed in violation of the principles of natural justice. The petitioner purchased the land somewhere in the year 1999 vide registered sale deed and entry nos.2751 and 2752 were posted in the revenue record and were duly certified. Perceptibly, the RTS team has investigated the issue and also prepared a proposal.
Page 12 of 13 Downloaded on : Sat Dec 24 18:26:14 IST 2022C/SCA/478/2016 JUDGMENT DATED: 08/06/2022 Everything including the transaction in favour of the petitioner was very much available to the respondent authorities. It was incumbent upon the Collector to have heard the petitioner and pass the order, but he chose not to do so, which lapse, is erroneous exercise of the powers. Pertinently, the respondent nos.4 and 5 have purchased the land from the respondent nos.6 to 8 and respondent nos.4 and 5, in turn, sold away property in favour of the petitioner. The transaction having certified, it is believed that factum of petitioner having subsequently purchased the land in question, was very much known to the authorities, but the Collector, ignoring such aspect, has passed the order. Though, the Collector has cancelled the entry nos.1616 and 1617 in favour of the respondent nos.4 and 5, effect of cancellation will have a direct bearing on the entries in favour of the petitioner inasmuch as, the transaction in favour of the petitioner would remain defective. Specific contention was raised by the petitioner before the learned Secretary and it was expected of the learned Secretary, when found, that the petitioner was not heard and the order has been passed in violation of the principles of natural justice, should have remitted the matter to the Collector to be decided afresh but, in the reasoning part, there is not a whisper about the said aspect and the learned Secretary proceeded to decide the matter on merits. This Court would have remitted the matter; however, considering the facts and the principle governing such facts and discussed in previous paragraph, both the orders, deserve to be quashed and set aside. Therefore, on all counts, both the orders of the Collector so also, the learned Secretary are hereby quashed and set aside.
15. The present writ petition stands allowed. Rule is made absolute to the aforesaid extent. No order as to cost.
(SANGEETA K. VISHEN,J) Hitesh Page 13 of 13 Downloaded on : Sat Dec 24 18:26:14 IST 2022