Gujarat High Court
Bhavubhai Gandabhai Koli vs State Of Gujarat on 16 March, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/6892/2021 JUDGMENT DATED: 16/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6892 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
==========================================================
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 ?
==========================================================
BHAVUBHAI GANDABHAI KOLI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR NV GANDHI(1693) for the Petitioner(s) No.
1,2,2.1,2.2,2.3,2.4,2.5,2.6,2.7,2.8,3
MR. NIKUNJ KANARA, AGP for the Respondent(s) No. 1,2,3
NOTICE SERVED BY DS for the Respondent(s) No. 4
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 16/03/2022
ORAL JUDGMENT
1. By way of this petition, the petitioners have prayed for quashing and setting aside the impugned orders passed by the Deputy Collector, Botad dated 16.09.2019 in proceedings no. ADM/RTS/Fragmentation/Case No.17/2018 whereby fine of Page 1 of 8 Downloaded on : Sat Dec 24 13:01:01 IST 2022 C/SCA/6892/2021 JUDGMENT DATED: 16/03/2022 Rs.17,685/- was imposed upon the petitioners and it was held that transfer of land purchased by the petitioners to be ineffective and directed vesting of land into government. The aforesaid order dated 16.09.2019 was confirmed by the Secretary (Appeals) Revenue Department, Ahmedabad vide order dated 30.12.2020 passed in Revision Application No. MVV/HKP/BTD/33/2019.
2. Heard learned advocate Mr. N. V. Gandhi for the petitioners and learned AGP Mr. Nikunj Kanara for the respondent - State.
3. Though notice served to the respondent no. 4, the said respondent no. 4 has not appeared before this Court. According to learned advocate Mr. Gandhi, the respondent no. 4 is the seller of the land and therefore, his presence is not required in the present petition. Hence, he seeks permission to delete the respondent no. 4. Permission as prayed for is granted. Respondent no. 4 is deleted as party respondent from the petition.
4. Considering the fact that issue involved is very short and therefore, with consent of both the parties, the matter is taken up for final hearing.
5. Hence, Rule. Learned AGP Mr. Nikunj Kanara waives service of notice of rule for and on behalf of the respondent - State.
6. Brief facts giving rise to the present petition are as under:-
The agricultural land bearing Survey No.42, paiki 5, total admeasuting 0-76-89 H.Are.Sq, mts. situated at sim of village:Page 2 of 8 Downloaded on : Sat Dec 24 13:01:01 IST 2022
C/SCA/6892/2021 JUDGMENT DATED: 16/03/2022 Bodi, Taluka: Botad, District: Botad was in the name of one Parsottambhai Panchabhai Jamod. Out of the said land, the petitioners purchased the part of the land being Survey No. 42 paiki 5/1 admeasuing 0-36-42 H-Are-Sq.mts. vide registered sale deed dated 28.12.1998. Pursuant to the aforesaid sale deed mutation entry no.1816 was mutated in the revenue record on 21.04.2014. It is the case of the petitioners that after the land was purchased by the petitioners, the petitioners constructed their residential houses on the land in question. For the sale of the land in question, sale deed was executed in the year 1998 and mutation entry was affected on 21.04.2014 after about 20 years from the date of registered sale deed. After 4 years from the date on after the mutation entry was certified in the name of the petitioners, the respondent no. 3 initiated the proceedings for breach of provisions of Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short "the Fragmentation Act"), the proceeding no.
ADM/RTS/Fragmentation/Case No.17/2018.
After hearing the petitioners, ultimately, the Deputy Collector, Botad passed an order holding that transaction in respect of the land in question is in breach of the provisions of Fragmentation Act and directed the land in question to be vested in the Government. He also imposed fine of Rs.17,685/- upon the petitioners.
7. The petitioners have challenged the aforesaid order dated 16.09.2019 passed by the Deputy Collector, Botad in Fragmentation Case No. 17 of 2018 by preferring the revision application under section 35 of the Act which was numbered as MVV/HKP/BTD/33/2019. After hearing the petitioners, even the Secretary, Appeals Revenue Department also rejected Page 3 of 8 Downloaded on : Sat Dec 24 13:01:01 IST 2022 C/SCA/6892/2021 JUDGMENT DATED: 16/03/2022 the revision application preferred by the petitioners and confirmed the order dated 16.09.2019 passed by the Deputy Collector, Botad in Fragmentation Case No.17 of 2018 vide order dated of Secretary Appeals dated 30.12.2020.
8. Being aggrieved and dissatisfied with both the orders, the present petitioners are preferred this petition.
9. Learned advocate Mr. N. V. Gandhi for the petitioners submitted that the land in question is used for residential purpose by the petitioners. However, learned advocate Mr. Gandhi submitted that the proceedings under the Fragmentation Act were initiated by the authority after a period of more than 20 years, after registered sale deed took place in favour of the petitioners and after a period of four years, after the revenue entry to that effect was mutated. He submitted that in the revenue record, the entry in respect to registered sale deed was mutated in the year 2014 whereas proceedings and Fragmentation Act were initiated in the year 2018 i.e. after four years.
10. Learned advocate Mr. N. V. Gandhi relied upon the decision dated 09.03.2020 in Latter Patent Appeal No. 2346 of 2017, wherein the Division Bench of this Court has taken a view that three years can be construed as reasonable period.
11. Learned advocate Mr. Gandhi also relied upon another judgment of this Court reported in 2005 (2) GLH 34 in the case of Valjibhai Jagjivanbhai V/s. State of Gujarat dated 28.12.2004 in Special Civil Application No. 1717 of 2004 and Special Civil Application No. 2418 of 2004. By citing both the judgments, learned advocate Mr. Gandhi submitted that the Page 4 of 8 Downloaded on : Sat Dec 24 13:01:01 IST 2022 C/SCA/6892/2021 JUDGMENT DATED: 16/03/2022 authority was required to exercise powers within reasonable time. As the powers are exercised belatedly after more than 20 years after, sale deed executed in favour of the petitioner, it suffers from the vice of delay and therefore, the entire proceedings are required to be quashed and set aside.
12. Learned AGP Mr. Kanara for the respondents - State submitted that in respect of the sale deed which was executed in the favour of the petitioner in the year 1998, revenue entry was mutated after more than 16 years in the month of April, 2014 and as soon as the revenue entry was noticed by the authority, the authority initiated the proceedings under the Fragmentation Act for alleged breach of violation of provisions of the Fragmentation Act. He submitted that time for issuance of the notice would start from the date of knowledge of the authority not from the date on which the sale deed was executed, or from the date on which mutation entry was certified and hence, he submitted that since, the petitioners have based their entire case only on the ground of delay in exercising the powers for breach of provisions of Fragmentation Act, in the instant case, it cannot be said that there is any delay which would operate as a bar against the authority and therefore, prayed that the petition may be dismissed, as there is no delay in exercising the powers by the authority and the Deputy Collector as well as Special Secretary, Revenue Department have given cogent reasons for passing the orders which are impugned in this petition and therefore, prayed for dismissal of this petition.
13. On perusal of record, it appears that the sale deed was executed in favour of the petitioners in the year 1998, for which mutation entry was entered into the revenue record in Page 5 of 8 Downloaded on : Sat Dec 24 13:01:01 IST 2022 C/SCA/6892/2021 JUDGMENT DATED: 16/03/2022 the year 2014 and for that for the first time, the notice was issued for alleged breach of provisions of Fragmentation Act in the year 2018 i.e. after 4 years after the mutation entry was mutated in favour of the petitioners after about 20 years, after the sale deed.
14. This Court on perusal of the record could found that the petitioners have specifically pleaded before the Deputy Collector as well as before the revisional authority i.e. Special Secretary, (Appeals) Revenue Department about the delay in exercising the powers of the revision. However, that contention though was taken by the petitioners was not dealt with by the authorities.
15. By now, it is well settled that by exercising the suo moto powers, the powers must be exercised within a reasonable time by the authority that reasonable time, according to the recent order passed in Letters Patent Appeal No. 2436 of 2017 dated 09.03.2021 by the Division Bench of this Court wherein it is observed in paragraph no. 6 that the reasonable time which can be construed as "reasonable" would be three (3) years." Now, keeping the view of Division Bench of this Court in mind and also keeping the ratio laid down by the Division Bench of this Court, in the case of Valjibhai Jagjivanbhai (Supra) wherein also the powers were exercised after long delay and the Division Bench categorically observed that powers under sections 9 (2) and 9 (3) have to be exercised within reasonable time especially as authorities have considerable opportunities to know about the transaction. The Division Bench has in paragraph no. 16.1 observed as under:-
"These provisions enable the revenue authorities to have complete details of the land which is entered as fragment in the Page 6 of 8 Downloaded on : Sat Dec 24 13:01:01 IST 2022 C/SCA/6892/2021 JUDGMENT DATED: 16/03/2022 record of rights or in absence of it, the record which is maintained in accordance with Section 6(1) of the Act, in any local area. It is, therefore, presumed that whenever change in the ownership is required to be entered into the revenue records after a sale transaction between two parties in respect of such land is over, the revenue authority would be able to find out whether the sale was legal or it was made in contravention of any of the provisions of the Act. No need to say that when the sale transaction is found to have been made contrary to the provisions of the Act, no change in the mutation entry would be effected. Naturally when the fragment is sought to be sold or is actually sold, it is against the provisions of Section 7, as transfer by partition or in any other way of a fragment is in contravention of provisions of Sections 7, 8, 8AA, etc, This is illustrative and not exhaustive."
16. The aforesaid observations made by the Division Bench of this Court would squarely cover and counter the arguments made by the learned AGP that the authority came to know about such mutation entry only in the year 2018 and thereafter, immediately proceedings were initiated as observed by the Division Bench of this Court. When mutation entry is certified, it can be presumed that the authority was well aware about the transactions in question and therefore, even if the date on which the mutation entry was certified is treated as the time from which the reasonable period is required to be counted, then also the powers are exercised by the authority after a period of four years i.e. beyond the period of reasonable time as observed by the Division Bench of this Court to be of three years.
17. Therefore, the exercise of powers by the authority and confirmed by the revisional authority is in respect of a proceedings which were initiated after a delay of four years and therefore, initiation of proceedings itself is barred by delay and laches and suffers from the gross delay and therefore, Page 7 of 8 Downloaded on : Sat Dec 24 13:01:01 IST 2022 C/SCA/6892/2021 JUDGMENT DATED: 16/03/2022 entire proceedings which are initiated belatedly would not be sustainable and therefore, deserves to be quashed and set aside and hence, orders passed in the proceedings which are initiated belatedly after a reasonable time also deserves to be quashed and set aside.
18. Accordingly, both the impugned orders dated 16.09.2019 passed by the Deputy Collector, Botad in proceedings no. ADM/RTS/Fragmentation/Case No.17/2018 and order dated 30.12.2020 passed by the Secretary (Appeals) Revenue Department, Ahmedabad in Revision Application No. MVV/HKP/BTD/33/2019 are hereby quashed and set aside.
19. The present petition is allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 8 of 8 Downloaded on : Sat Dec 24 13:01:01 IST 2022