Gujarat High Court
Dineshbhai Maganbhai Mistry vs State Of Gujarat Thro on 28 November, 2013
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
DINESHBHAI MAGANBHAI MISTRY....Petitioner(s)V/SSTATE OF GUJARAT THRO SECRETARY C/SCA/11742/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 11742 of 2012 With SPECIAL CIVIL APPLICATION NO. 11748 of 2012 With SPECIAL CIVIL APPLICATION NO. 11750 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ================================================================ 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ DINESHBHAI MAGANBHAI MISTRY....Petitioner(s) Versus STATE OF GUJARAT THRO SECRETARY & 3....Respondent(s) ================================================================ Appearance: MR SATISH A PANDYA, ADVOCATE for the Petitioner(s) No. 1 MR NEERAJ SONI, AGP, PLEADER for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 4.1 - 4.3 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 28/11/2013 ORAL JUDGMENT
The present petitions have been filed by the petitioners under Articles 14, 19, 226 & 227 of the Constitution of India as well as under sec. 211 of the Bombay Land Revenue Code, 1879 read with sec. 73AA of the Code for the prayers, inter alia, that the impugned order passed by the Secretary (Appeals), Revenue Department, dated 21.6.2012 in the respective petitions in purported exercise of power under sec. 211 of the Code may be quashed and set aside on the grounds stated in the petitions.
2. Heard learned advocate Shri Satish Pandya for the petitioners and learned AGP Shri Niraj Soni for the respondents.
3. The short point which has been canvassed is whether the purported exercise of power or suo motu revision by respondent No.2 beyond a reasonable period can be sustained or not.
4. The facts as stated in detail in the respective petitions are that the petitioners have constructed houses on the lands in question. However, the powers under sec. 73AA of the Code could be exercised within a reasonable period. The Deputy Collector, vide order dated 30.7.1994 & 19.8.1994 in the respective petitions, has clearly recorded that the transaction took place on 26.7.1979, that is, before the amended section 73AA was brought into force on 1.2.1981. It was, therefore, submitted that there is no question of breach or violation of the provisions of sec. 73AA of the Code. Further, it has been observed that considering the facts and circumstances, the notice is withdrawn and the order was passed by the Deputy Collector regarding withdrawal of the notice on 30.7.1994, which was taken in suo motu revision after the show-cause notice dated 21.9.2001 by the Secretary (Appeals) and the order came to be passed on 21.6.2012 at Annexure-E which is assailed in the present petitions, inter alia, on the ground of unreasonable delay in exercise of such powers.
5. Learned advocate Shri Pandya has therefore submitted that in light of the judgment of the Hon ble Apex Court in the case of State of Gujarat v. Patel Raghav Natha, reported in 1969(2) SCC 187, the petitions may be allowed.
6. Learned AGP Shri Soni, however, made a feeble attempt to resist the petitions.
7. In view of these submissions and considering the background of the facts, it is evident that the transaction with regard to the lands in question took place on 27.6.1979 when the banakhat was executed and thereafter the provisions of sec. 73AA of the Code was brought into force with effect from 1.2.1981. The Deputy Collector, therefore, by his order dated 30.7.1994 & 19.8.1994 at Annexure-C, withdrew the notice which has been taken in suo motu revision after a lapse of 7 years by the Secretary (Appeals) by issuing a show-cause notice dated 21.9.2001 and the impugned order came to be passed on 21.6.2012 at Annexure-E which is assailed in the present petitions.
8. The Secretary (Appeals) has considered the aspect of Fragmentation Act as well as whether the document is registered and whether the land is an agricultural land resulting in violation of sec. 63 of the Bombay Tenancy and Agricultural Lands Act, 1948. However, all these issues would not have much relevance in light of the judgment of the Hon ble Apex Court in the case of Patel Raghav Natha (supra) which has been consistently followed. Even subsequently in a judgment reported in the case of Santoshkumar Shivgonda Patil & ors. v. Balasaheb Tukaram Shevale & ors., reported in (2009) 9 SCC 353 = 2009 AIR SCW 6305, it has been observed that such power cannot be exercised beyond a reasonable period. It has been observed, ...Having regard to the fact that the proceedings came to be initiated after delay of more than about three years and that the petitioner is not guilty of fraud or suppression, the impugned proceedings and order cannot be said to have been initiated within reasonable time inasmuch as undisputedly the notice under the Act was issued in 2005. The proceedings and the order are hit by the vice of delay...
9. Moreover, the Hon ble Division Bench of the High Court of Gujarat in a judgment reported in 2013(2) GLR 1788 in the case of Chandulal Gordhandas Ranodriya and ors. v. State of Gujarat & ors. had considered this aspect with reference to the delay in exercise of such powers and the reasonable period. It has been observed, 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 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."
10. Therefore, the moot question is what could be considered to be reasonable time when the statute does not provide for any time-limit for exercise of such powers. The Division Bench of the High Court in the aforesaid judgment in the case of Chandulal Gordhandas Ranodriya (supra) has observed in para 38 referring to an earlier judgment reported in (2003) 4 SCC 488, 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 it 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 reasonable 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 .
Further, it has been observed, That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer (Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn., 2005)
11. Therefore, having regard to the aforesaid settled position of law, the present petitions deserve to be allowed and accordingly stand allowed. The impugned order passed by the Secretary (Appeals), Revenue Department, dated 21.6.2012 in purported exercise of powers under the Bombay Land Revenue Code cannot be sustained and it is quashed and set aside. Rule is made absolute in each petition. No order as to costs.
(RAJESH H.SHUKLA, J.) (hn) Page 5 of 5