Gujarat High Court
Jayantilal Jagjivan Modi vs State Of Gujarat & 3 on 12 March, 2014
Author: G.B.Shah
Bench: G.B.Shah
C/SCA/881/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 881 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
================================================================
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 ?
================================================================
JAYANTILAL JAGJIVAN MODI....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
================================================================
Appearance:
MRS KETTY A MEHTA, ADVOCATE for the Petitioner(s) No. 1
MR MANAN MAHETA, AGP for the Respondent(s) No. 1 - 2
RULE SERVED for the Respondent(s) No. 3 , 4.1 - 4.2
================================================================
CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 12/03/2014
ORAL JUDGMENT
Page 1 of 18
C/SCA/881/2000 JUDGMENT 1. The present petition is filed by the
petitioner praying for the following reliefs.
(A) By a writ of mandamus and/or by a writ in the nature of mandamus and/or by any other writ, direction or order, it be declared that the order passed by the Special Secretary (Appeals), Revenue Department, Gujarat State dated 6th September 1999 which was communicated to the petitioner by communication dated 29th October, 1999 is illegal, ultra vires and bad in law.
(B) By a writ of mandamus and/or by a writ in the nature of mandamus and/or by any other writ, direction or order, it be declared that notice dated 10th September, 1999 issued by the Mamlatdar & ALT in exercise of power under section 84(C) of the Bombay Tenancy Act is illegal, ultra vires and bad in law.
(C) Pending the hearing and final
disposal of this writ petition,
execution, operation and implementation of the order of the Special Secretary (Appeals), Revenue Department, Gujarat State dated 6th September 1999, Page 2 of 18 C/SCA/881/2000 JUDGMENT Annexure : I to the petition be stayed and the proceedings of notice initiated on 10th September, 1999 by the Mamlatdar & ALT under section 84(C) of the Bombay Tenancy Act, Annexure J to the petition also be stayed.
2. The brief facts of the case are that lands bearing Survey Nos.207 and 208 of village Tarsadi, Taluka Mangrol, District Surat were held by respondent Nos.2 and 3 herein and their names were shown as owners and occupants in the revenue records. It appears that respondent Nos.2 and 3 herein sold the said land to Keshavbhai Devjibhai Ramani - respondent No.4 herein by registered sale deed and in pursuance of the said registered sale deed, entry No.3118 was mutated in favour of Keshavbhai Devjibhai Ramani - respondent No.4 herein. Thereafter, Keshavbhai Devjibhai Ramani
- respondent No.4 sold the said lands by registered sale deed to the present petitioner and in pursuance of the said registered sale deed in favour of the petitioner, entry No.3164 was mutated in the revenue record in favour of the Page 3 of 18 C/SCA/881/2000 JUDGMENT petitioner on 24.8.1984. It appears that thereafter, the Assistant Collector, Olpad, Prant Surat initiated the proceedings suo motu for cancellation of entry No.3118 dated 26.7.1984 and entry No.3164 dated 24.8.1984 mutated in favour of respondent No.4 herein and the present petitioner respectively. As the Assistant Collector, Surat was not having jurisdiction, the matter was sent to the Collector, Surat. The Collector, Surat issued the notice to the petitioner and others for the breach of sections 2(6) and 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 ("the Tenancy Act"
for short) on 24.6.1993. The petitioner filed the reply in pursuance of the said notice issued by the Collector, Surat. Ultimately, the Collector, Surat by his order dated 21.1.1994 cancelled and set aside entry No.3118 dated 21.6.1984 made in favour of respondent No.4 and consequently, entry No.3164 dated 24.8.1984 made in favour of the petitioner also cancelled and set aside. The Collector, Surat also directed the Mamlatdar and Page 4 of 18 C/SCA/881/2000 JUDGMENT ALT, Mangrol to initiate the proceedings under section 84-C of the Tenancy Act. Being aggrieved, the petitioner and respondent No.4 preferred the Revision Application before the Special Secretary (Appeals), Revenue Department, Gujarat State.
Ultimately, the Special Secretary (Appeals), Revenue Department, Gujarat State by his order dated 6.9.1999 confirmed the order dated 21.1.1994 passed by the Collector, Surat in Revision Case No.49 of 1993. Hence, the present petition before this Court.
3. Heard learned advocate Mrs.Ketty A.Mehta for the petitioner - original applicant No.2 in the Revision Application before the Special Secretary (Appeals), Revenue Department, Gujarat State and learned AGP Mr.Manan Maheta for respondent No.1.
4. Learned advocate for the petitioner has submitted that the Collector, Surat was not having any jurisdiction to decide the issue involved in the present petition inasmuch as Page 5 of 18 C/SCA/881/2000 JUDGMENT while exercising the powers under the Bombay Land Revenue Code, 1879 (the "Code" for short) and the Rules framed thereunder. She submitted that the Collector ought not to have decided the validity of sale under the provisions of the Tenancy Act because the Collector, Surat was not having any jurisdiction to decide the question regarding validity of sale under section 63 of the Tenancy Act as only the Mamlatdar and ALT can decide the said question under section 84-C of the Tenancy Act. She submitted that it was also brought to the notice of the Collector that according to the well settled law by this Court in the case of Evergreen Apartment Cooperative Housing Society Vs Special Secretary, Revenue Department, Gujarat State, reported in 1991 (1) GLR 113, the Collector while exercising the powers under the Code and the Rules framed thereunder ought not to have decided the validity of sale under section 63 of the Tenancy Act, but the Collector has ignored to consider the said request made by the petitioner herein. She also submitted that it has Page 6 of 18 C/SCA/881/2000 JUDGMENT been decided by the Honourable Apex Court as well as by various High Courts that suo motu powers can be exercised by the Collector within one year and exercise of the powers beyond the period of one year as being exercised with unreasonable delay, but the said aspect has also not been considered by the Collector, Surat. She further submitted that Shri Keshavlal D.Ramani - respondent No.4 herein from whom the petitioner had purchased the lands bearing survey Nos.207 and 208 of village Tarsadi, Taluka Mangrol, District Surat was having agricultural land bearing Survey No.238 in village Tarsadi and was agriculturist since 1972-1973 and continued to be so and was agriculturist on the day on which the said sale was entered into in the year 1984 and though said Keshavlal D.Ramani - respondent No.4 herein had not appeared before him, but the documents which have been forthcoming on record are required to be considered in its true perspective, but the said aspect has not been considered by the Collector, Surat. Learned Page 7 of 18 C/SCA/881/2000 JUDGMENT advocate for the petitioner then submitted that the Special Secretary (Appeals), Revenue Department, Gujarat State has also failed to appreciate that not only the petitioner but Keshavlal D.Ramani - respondent No.4 herein was also agriculturist and both were holding agricultural land in village Tarsadi, but the Special Secretary (Appeals), Revenue Department, Gujarat State also ignored the said submissions made on behalf of the petitioner.
4.1 Learned advocate Mrs.Ketty Mehta for the petitioner then submitted that the petitioner had applied for non-agricultural use permission since June 1987 for both the survey Nos.207 and 208 of village Tarsadi and had entered into partnership in the name and style of Param Land Corporation and the said Corporation was having nine partners, who thereafter took possession of different plots and dissolved the said partnership and accordingly, the right, title and interest of the third party will be affected if Page 8 of 18 C/SCA/881/2000 JUDGMENT at such belated stage suo motu powers are allowed to be exercised under the provisions of the Code and the Rules made thereunder.
5. Paragraphs 10 to 12 of the decision in the case of Evergreen Apartment Cooperative Housing Society (supra) on which reliance is placed by learned advocate for the petitioner read as under.
"10. Similar views have been expressed in the case of Rajul Co-op. Housing Society Ltd. v. State, reported in [1985 (2)] 26(2) GLR 1187. In that case the Government had issued a notice to the Housing Society calling upon to show cause why the price of the land granted to the Society should not be revised to Rs. 275/- per sq. yd. The Court took into consideration the fact that the petitioner-Society had already constructed flats over the land and it was not in a position to return the land to the Government if it was desirous of paying price at the revised rate and so the time of 5 ½ years taken by the Government in initiating proceedings Page 9 of 18 C/SCA/881/2000 JUDGMENT under Sec. 211 of the Bombay Land Revenue Code was unreasonable.
11. In the present case the petitioner-
Society purchased the land in a public auction held at the instance of Special Recovery Officer, Surat on 25-5-1971. 77 members of the petitioner-Society contributed towards the cost of the land and paid an amount of Rs. 2,45,000/-. An entry was accordingly made in the revenue record and later on certified by the competent authority. Exemption was granted by the competent authority under Sec. 21 of the Gujarat Urban Land Ceiling and Regulation Act and the petitioner-Society got the construction plans approved by Surat Municipal Corporation which is the "local authority" and "appropriate authority"
under the provisions of the Gujarat Town Planning and Urban Development Act, 1976. The petitioner-Society constructed about 60 tenements which are now occupied by its members. It was, therefore, too late in the day for the Revenue Authorities to cancel the entry made in favour of the petitioner so as to create a cloud on the Society's Page 10 of 18 C/SCA/881/2000 JUDGMENT title. Thus, the impugned orders passed by the Collector and the Additional Chief Secretary, Revenue Department are bad having been passed after unreasonable delay.
12. There is much substance in the second submission of Mr. Hawa also. Ordinarily when a transfer of property takes place by a registered document, an entry is effected in the revenue record and it is certified by the Mamlatdar after making necessary inquiries. If there is any dispute regarding mutation, the dispute has to be entered in the register of the disputed cases and then such disputes are to be disposed of by the Mamlatdar. Under sub-rule (5) of Rule 108 of the Rules, the aggrieved party can prefer an appeal within 60 days from the date of the service of the order. The State Government has power to call for and examine the record of any enquiry or the proceedings of any subordinate Revenue Officer and to review the same under sub-rule (6) of the Rules. It is to be noted in the present case that no appeal had been presented within 60 days from the date Page 11 of 18 C/SCA/881/2000 JUDGMENT of Mamlatdar's order certifying the initial entry. The Assistant Collector, Surat took the said entry in suo motu revision, even though he had no such power under the provisions of Rule 108.
It, therefore, appears that the
Additional Chief Secretary, Revenue
Department remanded the proceeding to
the Collector for treating the same as an appeal. This was done after a period of 4 years after the certification of the entry. It was only the State Government which had the power to call for a record of inquiry or proceeding under sub-rule (6) of Rule 108. Even the State Government was empowered to satisfy itself "as to the regularity of such proceedings and as to the legality or propriety of any decision or order passed in such proceedings". So the entire inquiry and revisional power has to proceed under the Bombay Land Revenue Rules and not under any enactments like the Bombay Tenancy and Agricultural Lands Act, Urban Land (Ceiling and Regulation) Act or Bombay Prevention of Fragmentation and Consolidation of Holdings Act. It is quite possible that an officer of the Revenue Department may Page 12 of 18 C/SCA/881/2000 JUDGMENT be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by competent authorities under special enactments. Independently the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transaction recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Thus on this second ground also Page 13 of 18 C/SCA/881/2000 JUDGMENT the orders of the Collector and the Additional Chief Secretary appear to be beyond their jurisdiction. The Additional Chief Secretary has held that the sale by auction was not consistent with the provisions of Sec. 27 of the Urban Land (Ceiling and Regulation) Act.
Section 27 relates to prohibition of
transfer of any Urban land with a
building thereon. Apart from legal
position that Sec. 27 has been struck down as ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in the present case. Thus, the order of the revisional authority has proceeded on a misconception of relevant legal provisions also."
6.. I have considered the submissions made by learned advocate for the petitioner in light of the above referred decision rendered by this Court in the case of Evergreen Apartment Cooperative Housing Society (supra). It is the fact that alleged transaction related to respondent No.4 herein and in turn of the Page 14 of 18 C/SCA/881/2000 JUDGMENT petitioner is of the year 1984 and in the year 1987 non-agricultural permission was granted and entry Nos.5520 and 5521 dated 25.7.1987 were mutated to that effect. In my view, the ratio laid down in the above reported case is squarely applicable to the case on hand. The Collector, Surat has initiated proceedings in exercise of suo motu revisional powers on the ground that the above referred both entries i.e. 3118 and 3164 are made contrary to the provisions of law and in particular, section 2(6) and section 63 of the Tenancy Act. It is not under dispute that the said suo motu powers were exercised by issuance of notice under Rule 108(6) of the Bombay Land Revenue Rules (the "Rules" for short), copy of which is at Annexure-A to the petition. The attention of the Collector, Surat was drawn by raising a ground that he had no power, authority or jurisdiction to decide the question regarding validity of the sale under section 63 of the Tenancy Act and hence, he could not have decided the said question in exercise of his powers under Page 15 of 18 C/SCA/881/2000 JUDGMENT the Rules and particularly under Rule 108(6) of the said Rules, the Collector, Surat had entertained the said Revision No.49 of 1993 and the said exercise of power is illegal and bad in law is the submission made by learned advocate for the petitioner and considering the above referred ratio laid down by this Court in the case of Evergreen Apartment Cooperative Housing Society (supra), there appears force and merit in it and I find myself in agreement with the same. It is pertinent to note that before the Special Secretary (Appeals), Revenue Department, Gujarat State, the petitioner herein as well as respondent No.4 have pointed out that entry No.3118 dated 21.6.1984 could not have been taken into revision by the Collector for breach of provisions of the Tenancy Act, i.e. if there is breach of provisions of Section 63 of the Tenancy Act, the Collector has no power, authority or jurisdiction to take action under section 84-C of the Tenancy Act and only the Mamlatdar can take the said proceedings. It was also pointed out Page 16 of 18 C/SCA/881/2000 JUDGMENT that the Collector has initiated the proceedings under Rule 108(6) of the Rules, however, in exercise of the powers under the Rules, he could not have decided the question regarding breach of the provisions of the Tenancy Act. The attention of the Special Secretary (Appeals), Revenue Department, Gujarat State was also drawn on the decision in the case of Evergreen Apartment Cooperative Housing Society (supra), but the ratio laid down in it though squarely applicable to the case on hand, the same was ignored and not referred nor considered. On this count only, the present petition deserves to be allowed is the submission made by learned advocate for the petitioner and I find myself in agreement with the same. Under the circumstances, this special civil application is partly allowed. The order dated 6.9.1999 passed by the Special Secretary (Appeals), Revenue Department, Gujarat State which was communicated to the petitioner by communication dated 29.10.1999 is declared illegal and ultra-vires on the above referred Page 17 of 18 C/SCA/881/2000 JUDGMENT aspect. It is clarified that if the proceedings under section 84-C of the Tenancy Act is pending before the Mamlatdar & Agricutlural Lands Tribunal, the same be decided in accordance with law and its own merit and this order will not come in the way while exercising the powers by the Mamlatdar and Agricultural Lands Tribunal under section 84-C of the Tenancy Act. Rule is made absolute to the aforesaid extent only. No order as to costs.
(G.B.SHAH, J.) pathan Page 18 of 18