Gujarat High Court
Ramanbhai Gangarambhai Mori vs State Of Gujarat on 13 February, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1904
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/2229/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2229 of 2012
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RAMANBHAI GANGARAMBHAI MORI & 1 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR VIRAL GURJAR for MR VIMAL A PUROHIT(5049) for the Petitioners
for the Respondent(s) No. 2
MS DHWANI TRIPATHI, ASSTT. GOVERNMENT PLEADER(1) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 13/02/2020
ORAL ORDER
[1.0] By way of present petition under Articles 226 and 227 of the Constitution of India, following prayers have been made.
"(a) To issue an appropriate writ, order or direction either in the nature of certiorari or in the nature of mandamus and while issuing such a direction, be pleased to quash and set aside (i) the impugned order dated 24.10.2011 passed in Revision Application No.MV/HKP/Dahod/3/2008 passed by the respondent no.1 SSRD, Ahmedabad, (ii) order dated 19.11.2007 passed in RTS Revision No.62 of 2007 passed by the Collector, Dahod and (iii) order dated 29.05.2007 of the Deputy Collector passed in Review Case No.19 of 2006; and to restore the entry No.1152 and 3032 in favour of the petitioners;
(b) Pending the hearing and final disposal of this petition, be pleased to stay the implementation, execution and operation of (i) the impugned order dated 24.10.2011 passed in Revision Application No.MV/HKP/Dahod/3/2008 passed by the respondent no.1 SSRD, Ahmedabad, (ii) order dated 19.11.2007 passed in RTS Revision No.62 of 2007 passed by the Collector, Dahod and (iii) order dated 29.05.2007 of the Deputy Collector passed in Review Case No.19 of 2006; and to restore the entry No.1152 and 3032 in favour of the petitioners;"Page 1 of 6 Downloaded on : Fri Feb 14 22:48:15 IST 2020 C/SCA/2229/2012 ORDER
[2.0] The short facts arising from the record are as follows:
[2.1] That, the petitioners herein decided to purchase a parcel of agricultural land of Revenue Survey No.60 admeasuring 3 Hectare 21 Are at Mouje Limbdi, Taluka Zalod, District Dahod (hereinafter referred to as "said land"), for which the petitioners entered into a Agreement to Sell dated 16.03.1978 with original owner, who belonged to tribal caste, and the said transaction was mutated in the revenue record as Entry No.1152 which came to be confirmed on 29.05.1978 on condition of execution of registered sale deed.
[2.2] The parties executed a registered sale deed in the year 1996 and the same was produced before the revenue authority and accordingly, Entry No.3032 was mutated in the revenue record, which ultimately came to be certified on 30.08.1996.
[2.3] Since the petitioners intended to use the said land for nonagricultural purpose, the petitioners requested the concerned authority to convert the said land for nonagricultural use and accordingly, by an order dated 21.01.1997 passed by the competent Authority, the said land was permitted to be used for nonagricultural purpose. Since the petitioners intended to start a small scale industry on the said land, the petitioners made an application to the Director of Industries, Government of Gujarat to permit the petitioners to use the said land for small scale industry. The application was considered and appropriate certificate was issued by the Government of Gujarat permitting the petitioners to establish small scale industry on the said land and accordingly, the petitioners started the small scale industry.
[2.4] The petitioners received a notice from the Deputy Collector, Dahod calling upon the petitioners to explain as to why the entries which were mutated in the years 1978 and 1996 shall not be recalled under the Gujarat Land Revenue Code, 1879 (hereinafter referred to as "Code") for alleged breach of Section 73AA of the Code alleging that the said land was transferred to nontriable persons since the original owner was a tribal. After giving Page 2 of 6 Downloaded on : Fri Feb 14 22:48:15 IST 2020 C/SCA/2229/2012 ORDER opportunity of hearing to the petitioners, the Deputy Collector quashed and set aside the mutation entry No.1152, which was certified on 02.04.1978 as well as Entry No.3032 which was recorded on 28.06.1996, by his order dated 29.05.2007 passed in Review Case No.19/2006. The said decision was challenged by the petitioners by way of filing Revision Application No.62/2007 under Section 203 of the Code before the Collector, Dahod. The District Collector, Dahod dismissed the said RTS Revision by an order dated 10.10.2007.
[2.5] Both the aforesaid orders i.e. order dated 29.05.2007 and 10.10.2007 came to be challenged by way of filing Revision Application No.3/2008 before the Special Secretary, Revenue Department (Appeals) (hereinafter referred to as "SSRD") under Rule 108(6A) of the Gujarat Land Revenue Rules, 1972. The learned SSRD by the impugned order dated 24.10.2011 rejected the revision application and upheld both the orders on the ground that the said land was transferred to nontribal person.
Hence, the present petition.
[3.0] In response to the notice issued by this Court, the respondent Authorities have appeared through the learned AGP and they have filed affidavit in reply dated 08.08.2012 to which affidavits in rejoinder have been filed by the petitioners.
[4.0] Learned advocate Mr. Viral Gurjar for Mr. Vimal Purohit appearing for the petitioners has vehemently submitted that the authorities have committed grave error in quashing and setting aside the entries, which were mutated in the years 1978 and 1996, while exercising suo moto powers after a period of 10 years and particularly when there are no allegations by any authority that there was any fraud in transfer of the said land. He would submit that the Authority should have exercised its revisional powers within reasonable time. He would submit that though there is no limitation prescribed under the law, it has been held by catena of decisions of Hon'ble Apex Court and other High Page 3 of 6 Downloaded on : Fri Feb 14 22:48:15 IST 2020 C/SCA/2229/2012 ORDER Courts as well as this Court that the Authority shall exercise its power at the earliest and if such exercise is not undertaken by the Authority within reasonable time, such orders are required to be quashed and set aside. He would submit that after purchase of the said land, the same was permitted to be used for nonagricultural purpose in the year 1997. He would submit that the said order granting permission to the petitioners to use the said land for nonagricultural purpose has not been challenged till date by State Authority. He would submit that after converting the said land to nonagricultural use, the Director of Industries, Government of Gujarat has issued a certificate to use the said land for establishing a small scale industry and accordingly, the petitioners have established industry and carrying on business since 199798. Even the Gujarat Pollution Control Board has also issued appropriate certificate dated 07.03.1998. Relying upon the decision of the Hon'ble Apex Court in the case of Dipak Babaria and Anr. vs. State of Gujarat & Ors. reported in (2014) 3 SCC 502 and the decision of this Court in the case of Rinki Shashikant Gandhi vs. Mamlatdar, Vadodara Taluka & Ors. reported in 2012(2) GLR 1275, he would submit that the Hon'ble Apex Court as well as this Court as quashed and set aside the proceedings initiated at belated stage. He, therefore, would submit that the petition be allowed.
[5.0] On the other hand, learned AGP has opposed this petition and would submit that it is an admitted fact that the said land was belonging to a tribal and therefore, there is a bar under Section 73AA of the Code and therefore, the said land ought to have been sold to a nontribal person. The petitioners are nontribal and therefore, transactions are void ab initio and therefore, Authority was justified in exercising its powers when it came to know about such a transaction. She would submit that even the said transaction is not in accordance with the provisions like Bombay Stamp Act etc. and the sale cannot be treated as a sale. Hence, she has requested to dismiss the petition.
[6.0] I have heard learned advocates appearing for respective parties.
As far as the documents about affixing appropriate stamp upon the Page 4 of 6 Downloaded on : Fri Feb 14 22:48:15 IST 2020 C/SCA/2229/2012 ORDER conveyance deed is concerned, the same is not the dispute in the present proceeding and the authority established under the Bombay Stamp Act has never issued any notice calling upon any of the parties to pay the deficit stamp fees. Therefore, the said submission cannot be accepted and accordingly, rejected.
[6.1] As far as the case put forward by the petitioners that the case has been initiated at a belated stage is concerned, I have gone through the documents produced on record and perused the decisions relied upon by the Advocate for the petitioners. It is undisputed fact that the Agreement to Sell was executed on 16.03.1978 for which entry was initially posted and came to be certified by the revenue authority itself on 29.05.1978. Even when the sale deed was executed and the parties requested the revenue authority to record the entries about the registered sale deed, same was recorded and entry was mutated and confirmed on 30.08.1996.
[6.2] It is an admitted fact even as per the documents that the said land was converted for nonagricultural purpose on 21.01.1997 and the competent Authority has issued certificate to the petitioners to establish a small scale industry and accordingly, the industry is established and petitioners are doing business since years together. When the parties had agreed for transfer of the said land, even if it belonged to a tribal person and even if bar of section 73AA of the Code is there, it is expected from the concerned Authority to examine such entries and also from the higher Authority, who certified such entry, to take appropriate steps if it finds that some illegality has been committed and entries have been mutated contrary to different laws relating to agricultural land and under the provisions of the Land Revenue Code, Fragmentation Act, Tenancy Act etc. In the present case, suo moto proceedings have been initiated after a period of 10 years from the date of registration of sale deed for which entry was certified.
[6.3] I have gone through the decisions relied upon by the learned advocate Page 5 of 6 Downloaded on : Fri Feb 14 22:48:15 IST 2020 C/SCA/2229/2012 ORDER for the petitioners and I am of the opinion that the said decisions are squarely applicable to the case of the petitioners and therefore, the present petition deserves to be allowed.
[7.0] Present petition is allowed. Impugned order dated 24.10.2011 passed in Revision Application No.MV/HKP/Dahod/3/2008 passed by the Special Secretary, Revenue Department (Appeals), Ahmedabad and the order dated 19.11.2007 passed in RTS Revision No.62 of 2007 passed by the Collector, Dahod and the order dated 29.05.2007 of the Deputy Collector passed in Review Case No.19 of 2006 are hereby quashed and set aside and the entry Nos.1152 and 3032 are restored. Rule is made absolute accordingly.
(A.J.DESAI, J) Ajay Page 6 of 6 Downloaded on : Fri Feb 14 22:48:15 IST 2020