Gujarat High Court
Chimanbhai Khimchandbhai Mehta vs State Of Gujarat on 25 July, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11559 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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CHIMANBHAI KHIMCHANDBHAI MEHTA
Versus
STATE OF GUJARAT
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Appearance:
MR AMIT V. THAKKAR WITH MR RUTUL P DESAI(6498) for the
Petitioner(s) No. 1
MR J. K. SHAH, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 25/07/2022
ORAL JUDGMENT
With the consent of the learned advocates appearing for the respective parties, the captioned petition is taken up for final disposal.
2. Issue Rule, returnable forthwith. Mr J. K. Shah, learned Page 1 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 Assistant Government Pleader waives service of notice of Rule on behalf of the respondent no.1.
3. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside: (i) order dated 4.9.2009 passed by the Deputy Collector (Land Reforms) in revision application no.31 of 2007; (ii) order dated 30.1.2015 passed by the Gujarat Revenue Tribunal (hereinafter referred to as "Tribunal") in revision application no.TEN/BA/466/2009 and (iii) order dated 15.6.2021 passed by the Tribunal in review application no.TEN/CA/7/2015. Vide order dated 4.9.2009 of the Deputy Collector (Land Reforms), the order dated 31.7.2006 passed by the Mamlatdar & ALT in tenancy case no.410 of 1999 (remand case no.8 of 2006) has been quashed and set aside, it not being in tune with the provisions of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "Act of 1948"). The petitioner, is aggrieved by the said order which, was unsuccessfully challenged before the Tribunal.
4. The facts of the case are:
4.1 Center to the issue, is land bearing survey no.331 admeasuring A-0 35 gunthas; survey no.332 admeasuring A-0 39 gunthas; survey no.333 admeasuring A-1 06 gunthas; survey no.335/1 admeasuring A-2 27 gunthas; survey no.335/2 admeasuring A-1 21 gunthas; survey no.342 admeasuring A-1 12 gunthas; survey no.401/2 admeasuring A-0 22 gunthas; survey no.402 admeasuring A-0 20 gunthas; survey no.403/1 admeasuring A-0 22 gunthas; survey no.403/2 admeasuring A-1 29 gunthas;
survey no.404 admeasuring A-1 02 gunthas and survey no.405 admeasuring A-1 13 gunthas of village Vemali, taluka, district Vadodara (hereinafter referred to as "lands in question").
Page 2 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 4.2 According to the petitioner, the lands in question, were
purchased by registered sale deed dated 10.6.1982, followed by mutation of entry nos.661 to 668, all dated 11.6.1982. The lands in question, have been assigned respective survey/block nos.234 and
247. It is the case of the petitioner that the Deputy Secretary, Revenue Department, has passed an order dated 6.2.1990 under the provisions of section 20 of the Urban Land (Ceiling and Regulations) Act, 1976 (hereinafter referred to as "Act of 1976") for agricultural purpose. It is the case of the petitioner that prior to the purchase of the lands in question of village Vemali, the petitioner was holding agricultural land and was engaged in the agricultural activities at village Gotri, taluka Vadodara. The petitioner, had purchased lands bearing block no.681 and block no.685 of village Gotri pursuant to the order dated 4.7.1979 of the Revenue Department whereby, the petitioner was granted permission under section 20 of the Act of 1976 with respect to survey nos.191 and 185 of village Gotri.
4.3 It is also the case of the petitioner that the proceedings under section 84C of the Act of 1948 were initiated against the petitioner with respect to lands of village Gotri alleging breach of section 63 of the Act of 1948. The Tribunal, has passed a judgment dated 13.11.1987 and the revision application filed by the State of Gujarat through the Collector, came to be allowed and the order of the Deputy Collector as well as Mamlatdar & ALT were set aside and were declared nullity. Thereafter, proceedings were initiated under section 84C of the Act of 1948 with respect to lands of village Gotri which led to passing of the order dated 25.5.1992 whereby, the Mamlatdar & ALT, had dropped the notice on the ground that the issue is already crystallized. According to the petitioner, the petitioner, had purchased the lands in question of village Vemali vide registered sale deed in the year 1982. After unreasonable delay Page 3 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 of 7 years, the Mamlatdar & ALT initiated proceedings alleging the breach of the provisions of Tenancy Act. Vide order dated 25.7.2002, the Mamlatdar & ALT, has passed an order whereby, he was of the opinion that there is no breach of the provisions and the notice issued under section 84C of the Act of 1948 was withdrawn. The Deputy Collector (Land Reforms) took the order of the Mamlatdar & ALT in suo motu revision which, led to the passing of the order dated 3.2.2006 whereby, the said order passed by the Mamlatdar & ALT was quashed and set aside. While doing so, the Deputy Collector (Land Reforms), remanded the matter to the Mamlatdar & ALT who, passed an order dated 31.7.2006, dropping proceedings under section 84C of the Act of 1948. The order of the Mamlatdar & ALT, was once again taken in suo motu revision which, led to passing of the order dated 4.9.2009. The Deputy Collector (Land Reforms), quashed and set aside the order dated 31.7.2006 of the Mamlatdar & ALT, once again remanded the matter to the Mamlatdar & ALT to take a decision afresh.
4.4 The petitioner, being aggrieved, preferred a revision application before the Tribunal which, passed an order dated 30.1.2015. The Tribunal, was of the opinion that no error has been committed by Deputy Collector (Land Reforms) in passing the order dated 4.9.2009 and thereby, confirmed the same. The petitioner, being aggrieved, preferred a review application no.7 of 2018, which also came to be rejected by the Tribunal by order dated 15.6.2021. Hence, the present writ petition.
5. Mr Amit V. Thakkar, learned advocate with Mr Rutul P. Desai, learned advocate appearing for the petitioner, submitted that the proceedings initiated by the Mamlatdar & ALT, were beyond the reasonable period of more than 7 years and therefore, only on this ground, the proceedings initiated by the revenue authorities, Page 4 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 deserve to be quashed and set aside. It is submitted that the petitioner herein, is an agriculturist of village Vemali and was holding agricultural land; before the purchase of the lands in question. It is submitted that the State Government in its Revenue Department, has passed an order dated 4.7.1979 and granted permission to the petitioner to purchase the agricultural land and the application of the petitioner as an agriculturist was considered. The said order granting permission dated 4.7.1979, has attained finality and not challenged by any of the authorities. It is submitted that the proceedings with respect to lands situated at village Gotri, were initiated by the Mamlatdar & ALT for the breach of the provisions of the Tenancy Act and the Mamlatdar & ALT, ordered that the lands of village Gotri be confiscated to the Government. The Deputy Collector (Land Reforms) had allowed the appeal and the order of the Mamlatdar & ALT, was set aside. The revision application was preferred before the Tribunal which, allowed it.
5.1 It is further submitted that the Tribunal, took note of the exemption granted under the provisions of the Act of 1976 and concluded that when there is an exemption granted to the land and permission is granted for sale under the Act of 1976, the jurisdiction of any Court or Tribunal is barred to set aside that order under any Act or Regulations. The Tribunal, therefore, concluded that the proceedings were initiated under section 84C of the Act of 1948 and therefore, in view of the exclusion under section 42 of the Act of 1976, the Mamlatdar had no jurisdiction to initiate the proceeding so also the Deputy Collector (Land Reforms). The Tribunal, declared both the orders of the Mamlatdar & ALT and Deputy Collector (Land Reforms) as nullity. The Tribunal, while rejecting the revision application, has also considered that the entry was posted in the revenue record in the year 1979 and was certified; however, the proceedings were initiated in the year 1984 i.e. after the Page 5 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 unreasonable period. The order of the Mamlatdar & ALT, was also quashed on the ground that the powers have been exercised beyond the reasonable period. The Tribunal, considered the well settled principle that where no period of limitation is prescribed for initiating suo motu inquiry under section 84C of the Act of 1948, it does not mean that action can be taken at any point of time. It is therefore submitted that the Tribunal, has concluded in favour of the petitioner on both the counts namely; (i) that the Mamlatdar & ALT and Deputy Collector (Land Reforms) had no jurisdiction to initiate any proceedings in view of the order passed by the State Government granting exemption so also (ii) on the ground of proceedings initiated beyond the reasonable period.
5.2 It is further submitted that after passing of the order by the Tribunal, once again, the proceedings were initiated with respect to the lands of village Gotri by the Mamlatdar and ALT by issuing notice under section 84C of the Act of 1948 with respect to survey nos.681 and 685; however, after due inquiry, the Mamlatdar & ALT has passed an order dated 25.5.1992 withdrawing the notice under section 84C of the Act of 1948 and dropping the proceeding. It is therefore submitted that when the issue, stands settled with respect to the lands of village Gotri, on similar lines, the proceedings initiated with respect to the lands in question, would also be impermissible in law.
5.3 It is submitted that so far as the lands in question are concerned, the petitioner had purchased the same after taking necessary permission of the State Government, Revenue Department. The Revenue Department, has passed an order dated 6.2.1990, granting the permission under section 20 of the Act of 1976 which, was granted on certain terms and conditions. It is submitted that the order of the State Government granting Page 6 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 permission under section 20 of the Act of 1976, has attained finality it having not been challenged. It is submitted that the said application, was considered by the State Government, considering the status of the petitioner as an agriculturist. In fact, in the said order, it has been recorded that the applicant, is an agriculturist and is cultivating the said land. The factum of the order dated 6.2.1990 was entered in the revenue record on 20.11.1991 vide entry no.919 and which was certified on 27.11.1991. Therefore, when the order has been passed by the State Government granting exemption and not challenged, so also the entry no.919 dated 20.11.1991 in the revenue record, it was impermissible to the authorities concerned, to have initiated proceedings for breach under the provisions of section 84C of the Act of 1948. It is submitted that the issue, stood concluded by the order dated 13.11.1987 by the Tribunal with respect to the lands of village Gotri. The lands of village Vemali stands on a similar footing as the lands of village Gotri. Therefore, the judgment of the Tribunal dated 13.11.1987 will squarely apply to the lands in question of village Vemali.
5.4 It is further submitted that despite the issue got concluded the proceedings were initiated by the Mamlatdar & ALT. The Mamlatdar & ALT, did not consider the judgment dated 13.11.1987 passed by the Tribunal. Considered were the documents namely; (i) judgment dated 13.11.1987 of the Tribunal; (ii) transaction of land bearing survey nos.681 and 685 of village Gotri; (iii) the permission dated 4.7.1979 and it concluded that there is no breach of the provisions of the Act of 1948 and dropped the notice.
5.5 It is submitted that in the first place, the Mamlatdar & ALT, could not have initiated the proceedings after a period of almost 7 years. Though the proceedings were initiated the Mamlatdar & ALT, rightly dropped the notice under the Tenancy Act. But, the Deputy Page 7 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 Collector (Land Reforms) while taking the same in suo motu revision, has passed an order dated 3.2.2006. It is submitted that the order of the Mamlatdar & ALT, was passed in the year 2002 whereas, the Deputy Collector (Land Reforms), has initiated the proceedings under section 76A of the Act of 1948 close to 3 years as, the proceedings, have been registered as revision case no.34 of 2004. It is submitted that the Deputy Collector (Land Reforms), has passed an order quashing and setting aside the order and remanded the matter to the Mamlatdar & ALT.
5.6 It is further submitted that upon remand, the Mamlatdar & ALT, has passed an order dated 31.7.2006 once again dropping the proceedings of section 84C of the Act of 1948 for breach of section 63 of the Act of 1948. However, the Deputy Collector (Land Reforms), took the order of the Mamlatdar & ALT in suo motu revision and passed an order dated 4.9.2009. Said order is not only against the provisions of the Act of 1948 but also against the findings recorded by the Tribunal with respect to the lands bearing survey nos.681 and 685 of village Gotri. It is submitted that order of the Deputy Collector (Land Reforms) dated 4.9.2009, is erroneous and deserves to be quashed and set aside. Further, the Tribunal, did not properly consider the issue and has passed the order. Since certain issues were not considered properly that the petitioner filed a review application no.TEN/CA/07/2015; however, the same was of no avail.
5.7 It is submitted that as is discernible from the review application, the petitioner, has raised all the permissible contentions; however, the Tribunal, did not accede to the request of the petitioner and has rejected the same. It is therefore submitted that the exercise of powers by the revenue authorities beyond the Page 8 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 reasonable period, would be against the well settled principles laid down by this Court as well as by the Apex Court.
5.8 It is further submitted that so far as the exercise of powers by the Deputy Collector (Land Reforms) is concerned, section 76A of the Act of 1948, provides limitation for exercising the suo motu powers. Proviso to section 76A of the Act of 1948, clearly envisages that no such record shall be called for after the expiry of one year, from the date of such order and no order of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard. It is therefore submitted that when there is a limitation provided for exercise of the powers of one year under section 76A of the Act of 1948, the order dated 3.6.2006 by which, the order of the Mamlatdar & ALT, has been quashed and set aside, was illegal and bad in law.
5.9 Reliance is placed on the judgment of the Apex Court in the case of Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim reported in (1997) 6 SCC 71. The Apex Court, considering the proceedings initiated under the provisions of section 84C of the Act of 1948, has held and observed that section 84C of the Act of 1948 does not prescribe any time for initiation of the proceedings; however, 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. The Apex Court, has also held 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.
5.10 Further reliance is placed on the judgment of this Court in the case of Rameshbhai Ambalal Shah v. State of Gujarat reported in 2011 (3) GLR 2587. It is submitted that this Court, has held and Page 9 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 observed that even the void transaction, if allowed to remain effective for considerable long period, the authority named therein will be precluded from initiating proceedings to annul it. It has been further held and observed that if its existence is allowed to remain for a considerable period and with the passage of time it brings about several changes, creating valuable rights in favour of considerable section of people, it is difficult to accept the proposition that despite the change, the Collector would be entitled to exercise powers.
5.11 It is next submitted that if the powers are exercised beyond the reasonable period, the same would be without jurisdiction. Reliance is placed on the judgment in the case of Bharatbhai Naranbhai Vegda v. State of Gujarat reported in 2016 (2) GLR 1021. This Court, in paragraph 12, has held and observed that the limitation provided for initiation of the action or the consideration of the reasonable period for initiation of the action or the bar operating of delay for initiation of the action are jurisdictional aspects on the power of authority which has initiated the action. It has been held and observed that the bar of delay operates against the exercise of jurisdiction or that the initiation of action, is beyond reasonable period. The action can be said as without jurisdiction.
5.12 Reliance is placed on (i) judgment in the case of Shambhuram Videshiram Morya v. State of Gujarat through Secretary (Appeals) reported in 2012 (1) GLR 665; (ii) judgment in the case of Mangalbhai B. Prajapati v. State of Gujarat & Ors. Reported in 2001 (1) GLR 242; (iii) judgment of this Court in the case of Rajesh Omprakash Sood v. State of Gujarat reported in 2006 (2) GCD 1659;
(iv) judgment in the case of Chandulal Gordhandas Ranodariya & Ors. v. State of Gujarat & Ors. reported in 2013 (2) GLR 1788; and Page 10 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022
(v) judgment of this Court in the case of Amitbhai Kantilal Jayswal v. State of Gujarat reported in 2020 (2) GLR 981.
5.13 It is submitted that the common thread running through all the judgments is that if the statute does not provide limitation for exercise of the powers, it does not mean that the powers can be exercised at any point of time. It is well settled that wherever a power is vested in the statutory authority without prescribing any time limit, such power is to be exercised within a reasonable time. It is therefore submitted that in the present case, Mamlatdar & ALT has initiated the proceedings in the year 1989 after a delay of almost 7 years and passed the order in the year 2002 that would be almost after a period of 13 years. It is therefore submitted that the Mamlatdar & ALT, has rightly dropped the proceedings under section 84C of the Act of 1948; however, the Deputy Collector (Land Reforms) instead of appreciating that it would be impermissible to take action beyond the reasonable period, has quashed and set aside the order of the Mamlatdar & ALT, remanding the matter for the decision afresh.
5.14 For the proposition that suo motu powers are to be exercised within a period of one year under section 76A of the Act of 1948 and not beyond, reliance is placed on the judgment of this Court in the case of Thakorbhai Tribhovandas Rao & Ors. v. State of Gujarat & Ors. reported in 1995 (1) GLR 636. While interpreting the proviso to section 76A of the Act of 1948, it has been held and observed that the limitation prescribed by the proviso for the exercise of the revisional powers beyond the expiry of one year from the date of the order is clear and exquisite and the Collector will have no revisional power to be exercised beyond the reasonable period of one year prescribed by the proviso to section 76A of the Act of 1948. Principle, is reiterated in the judgment of this Court in the Page 11 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 case of Pranavbhai Bhadresehbhai Kagalwala v. State of Gujarat thro. Secretary passed in Special Civil Application no.14743 of 2012.
5.15 It is therefore submitted that when the proviso to section 76A of the Act of 1948 provides for the limitation of one year, the exercise of the powers by the Deputy Collector (Land Reforms) in the year 2005 taking in review the order of the Mamlatdar & ALT of the year 2002, was beyond the period of limitation and therefore, without jurisdiction. It is therefore urged that on all counts, the order of the Deputy Collector (Land Reforms) dated 4.9.2009 and the Tribunal dated 30.1.2015 and the order in review dated 15.6.2021 passed by the Tribunal, deserve to be quashed and set aside.
6. On the other hand, Mr J. K. Shah, learned Assistant Government Pleader while inviting the attention to the affidavit-in- reply filed by the Deputy Collector (Land Reforms), submitted that the petitioner, before purchasing the land of village Gotri had executed the transaction with respect to the land situated at village Aeru, taluka Jalalpor. Survey no.447/1/3 of village Aeru, was in the name of Rukhiben Sundarji daughter of Khantubhai and the name of Yashvantrai Maganlal came to be mutated in the revenue record vide heirship entry no.2741 dated 13.5.1974. It is thereafter that the name of the petitioner as well as Shivlal Deepchand Shah came to be posted in the revenue record as coowners of the land vide entry no.2837 dated 3.10.1977. Clearly, the said entry no.2837, was made on the basis of the statement of panchas and was not on the basis that either the petitioner or Shri Shivlal Deepchand Shah was an agriculturist. As is clearly discernible from the entry, it no where mentioned that the petitioner was an agriculturist or that the petitioner was possessing any agricultural land elsewhere.
Page 12 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 6.1 It is further submitted that on the basis of said transaction and
more particularly, mutation entry no.2837 dated 3.10.1977, that the petitioner, purchased the agricultural land bearing block no.681 and block no.685 situated at village Gotri, taluka Vadodara in the year 1979. As a result whereof, entry no.2089 dated 7.8.1979 was posted in the revenue record. The genesis of the said entry, was the transaction of the year 1977 with respect to the land bearing survey no.447/1/3 situated at village Aeru. It is also required to be noted that after the petitioner purchased the land bearing block no.681 and block no.685 of village Gotri, the petitioner got his name deleted from the revenue record of land bearing survey no.447/1/3 in the year 1980. The said effect, was recorded vide entry no.2936 dated 28.3.1980. It is further submitted that it is thereafter that the petitioner, has purchased the land in question of village Vemali, taluka & District Vadodara vide registered sale deed in the year 1982. Mutation entry nos.661 to 668, all dated 11.6.1982 were posted in the revenue record. It is submitted that if one is to appreciate all the three transactions in juxta position, what emerges is that only by entering his name as a coowner for agricultural land situated at village Aeru that the petitioner purchased subsequent parcel of lands at village Gotri and thereafter of village Vemali. It is therefore submitted that the transaction initially with respect to the lands of village Aeru and on the basis whereof the transaction with respect to the lands of village Gotri and subsequently, the transaction with respect to the lands in question with respect to village Vemali, were nothing but a concerted attempt on the part of the petitioner to purchase various agricultural lands despite the fact that the petitioner, was not an agriculturist.
6.2 It is next submitted that proceedings initiated under the provisions of section 84C of the Act of 1948 with respect to the block no.681 and block no.685; have nothing to do with the land Page 13 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 bearing survey no.447/1/3 of village Aeru. Also, the question of determining the status of the petitioner as an agriculturist, was not the subject matter and it has to be decided only as per the provisions under the Act of 1948 and therefore, the reliance placed by the petitioner on the judgment dated 13.11.1987 of the Tribunal for the purpose of the transactions with respect to the lands in question, is misplaced and misconceived.
6.3 It is further submitted that pertinently, the petitioner got his name entered as a coowner of the land bearing survey no.447/1/3; however, it is not clear as to how the petitioner, was related to the land owners i.e. Rukhiben Sundarji and Yashvantrai Maganlal, the owners of survey no.447/1/3. It is submitted that the names are entered only with a view to seeing that the petitioner, aquires the status of an agriculturist and taking advantage of the said transaction, that the petitioner has purchased the lands of village Gotri and village Vemali. It is also submitted that except these three transactions, it is not clear that as to how the petitioner has acquired the status of an agriculturist, having the account of khedut khatedar. The lands in question purchased by the petitioner was in breach of the provisions of section 63 of the Act of 1948 which, led to the initiation of the proceedings and passing of the order by the Mamlatdar & ALT.
6.4 It is submitted that the said aspect, has been properly considered by the Deputy Collector (Land Reforms) in its order dated 4.9.2009. In paragraph 7, the factum of the petitioner purchasing the land in the year 1979 and subsequent purchase of the land of village Gotri and deletion of his name from the revenue record in the year 1980, is considered. The Deputy Collector (Land Reforms), has clearly recorded that so far as the land of village Aeru is concerned, the same was of the ownership of Yashvantrai Page 14 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 Maganlal and the name of petitioner was entered as a coowner. The Deputy Collector (Land Reforms) was of the considered opinion that the transaction of the year 1977, was only with a view to creating evidence of the petitioner being an agriculturist and on the basis whereof, purchase of the land of village Gotri. The Deputy Collector (Land Reforms), has also taken note of the fact that the petitioner was no where related or connected to the owners of the land bearing survey no.447/1/3 of village Aeru. Since the petitioner could not substantiate the transaction of village Aeru that it has been concluded that the transaction, was in breach of section 84C(2) and section 84C(3). Therefore, it cannot be said that the Deputy Collector (Land Reforms) has committed any error in passing the order dated 4.9.2009.
6.5 It is next submitted that it was under the said circumstances that the Deputy Collector (Land Reforms) has remanded the matter to the Mamlatdar & ALT to decide it afresh. The petitioner, could not point out any error which was committed by the Deputy Collector (Land Reforms) in passing the order dated 4.9.2009 and therefore, the revision application filed by the petitioner, came to be rejected vide order dated 30.1.2015. The review application filed by the petitioner, also came to be rejected on 15.6.2021. Therefore, the Deputy Collector (Land Reforms) in the first instance and the Tribunal, by two orders dated 30.1.2015 and 15.6.2021, cannot be said to have committed any error in passing the orders. Since no error has been committed, the petition does not deserve to be entertained and be rejected.
7. Heard the learned advocates appearing for the respective parties and perused the material available on the record.
8. The facts are already discussed in detail in preceding paragraphs; however, brief reference is necessitated at this stage.
Page 15 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 As is discernible from the record, the petitioner was holding the agricultural land and was carrying out the agricultural activities at village Gotri. The land bearing block no.681 and block no.685 were purchased pursuant to the order dated 4.7.1979 passed by the Revenue Department of the State Government. The said order was passed in exercise of the powers conferred under section 20 of the Act of 1976 by the State Government on certain terms and conditions.
9. Perceptibly, somewhere in the year 1984, proceedings were initiated and vide order dated 18.4.1984, the Mamlatdar & ALT, Vadodara, confiscated the land against which, an appeal was filed before the Deputy Collector (Land Reforms) who, allowed it vide order dated 1.10.1984 and the order of the Mamlatdar & ALT was set aside. Being aggrieved, the State Government preferred a revision application before the Tribunal and it allowed the same vide judgment dated 13.11.1987. While referring to section 42 of the Act of 1976, the Tribunal, held that when exemption is granted to the land so also the permission to sale, the jurisdiction of any Court or Tribunal is barred to set aside that order under any Act or Regulation. The Tribunal, was therefore of the opinion that the Mamlatdar & ALT had no jurisdiction to initiate the proceedings under section 84C of the Act of 1948 and concluded that the orders of the Mamlatdar & ALT as well as Deputy Collector (Land Reforms), are nullity.
10. The Tribunal, while adverting to the entry, held that it was certified on 16.10.1979, whereas, proceeding was initiated in the month of January 1984 i.e. after unreasonable period and referred to the well settled principle that where no period of limitation is prescribed for initiating the suo motu inquiry under section 84C of the Act of 1948, it does not mean that action can be taken at any Page 16 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 point of time. The Tribunal, though allowed the revision application, orders passed by the Mamlatdar & ALT as well as Deputy Collector (Land Reforms) were set aside and declared as nullity. Undeniably, the judgment of the Tribunal dated 13.11.1987, has attained finality and not challenged. Moreover, after the order of the Tribunal, proceedings were initiated with respect to lands of village Gotri under the provisions of section 84C of the Act of 1948. The Mamlatdar & ALT, dropped the notice and closed the proceedings.
11. So far as the lands in question are concerned, the petitioner purchased the same in the year 1982 apropos which, entry nos.661 to 668, all dated 11.6.1982 were posted in the revenue record. All the entries were certified by the Mamlatdar & ALT, Vadodara on 14.7.1982. It appears that the petitioner filed an application dated 18.8.1989 under the provisions of section 20 of the Act of 1976 which, came to be granted by the State Government in its Revenue Department vide order dated 6.2.1990. The factum of passing of the order, has been recorded in the revenue record vide entry no.919 dated 20.11.1991, and was certified. The order dated 6.2.1990 as well as entry no.919 dated 20.11.1991, have not been disturbed in any proceedings.
12. In the year 1989, proceedings for breach of provisions under sub-section (6) of section 2 and section 63 of the Act of 1948 were initiated under the provisions of section 84C of the Act of 1948 which, culminated into the passing of the order dated 15.7.2002. The Mamlatdar & ALT while considering the lands purchased of village Aeru, taluka Jalalpor and village Gotri, withdrew the notice. The order of the Mamlatdar & ALT dated 15.7.2002, was taken in review by the Deputy Collector (Land Reforms) in the year 2006 i.e. close to 4 years who quashed and set aside the order of the Mamlatdar & ALT and remanded the matter for afresh decision. The Page 17 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 Mamlatdar & ALT, thereafter, passed an order dated 31.7.2006, once again withdrawing the notice under section 84C of the Act of 1948. What weighed with the Mamlatdar & ALT was that the Tribunal has decided the issue in the year 1987 and 25 years have passed by for initiating the proceedings for breach of section 63 of the Act of 1948. In view of the judgment of the Tribunal dated 13.11.1987, the proceedings are barred by principle of res judicata. In 2007, the Deputy Collector (Land Reforms), once again, reviewed the judgment and passed an order dated 4.9.2009, quashing and setting aside the order dated 31.7.2006 of the Mamlatdar & ALT, inter alia, on the ground that the order is not in conformity with the provisions of the Act of 1948 and therefore, illegal.
13. With this background the issue and challenge are to be considered. Undeniably, the transactions were executed in the year 1982 and entries were duly certified in the revenue record. Certification of entry suggests the knowledge of the revenue authorities of the transactions followed by the permission under section 20 of the Act of 1976 vide order dated 6.2.1990 and mutation of entry no.919 dated 20.11.1991. The said entry, was also certified. Therefore, the transaction followed by entries, further followed by order of the Revenue Department of the State Government and subsequent entry no.919 make it explicitly clear that the knowledge was very much there with the revenue authorities with respect to the lands in question of village Vemali. Despite that, notice for the first time, for breach of the provisions of sub-section (6) of section 2 and section 63 of the Act of 1948, came to be issued in the year 1989 i.e. almost after a period of 7 years. Also, the said proceedings, though were registered in the year 1989, were concluded in the year 2002 i.e. almost after a period of 13 years. Moreover, the order of the Mamlatdar & ALT of the year 2002, was taken in review by the Deputy Collector (Land Reforms) in the Page 18 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 year 2005 i.e. with a delay of almost 3 years. Therefore, the first delay was of 7 years, proceedings remained pending for 13 years and after a delay of 3 years that the Deputy Collector (Land Reforms) took the order in suo motu revision.
14. Quite apart, the Deputy Collector (Land Reforms) was of the opinion that the matter, has not been properly considered by the Mamlatdar & ALT and remanded the same. In the remand proceeding, the Mamlatdar & ALT passed an order dated 31.7.2006, which was also taken in review by the Deputy Collector (Land Reforms) who, passed an order dated 4.9.2009 once again remanding the matter. When the matter was already remanded, it is difficult to fathom that as to why the matter was once again remanded to the Mamlatdar & ALT to be decided. The petitioner, being aggrieved, has preferred a revision application before the Tribunal who, took 6 years to decide the same and while rejecting the revision application, confirmed the order of the Deputy Collector (Land Reforms) of remand. The review application came to be filed raising all the contentions including the contention of delay in exercise of the powers beyond reasonable period; however, the Tribunal, rejected the review application vide order dated 15.6.2021 which is, the subject matter of challenge. The said decision, also took 6 years. The delay is undisputed. The Tribunal, was of the opinion that mere remand order, will not be affecting the right and interest of the respective parties and when the Mamlatdar & ALT has been directed to take a decision afresh, there is always remedy available to the party concerned to challenge the same. With this, the Tribunal, rejected the revision application so also the review application. The Tribunal, ought to have considered the facts and the principle laid down in the judgment, instead of rejecting the revision application.
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15. The issue, as regards impermissibility to exercise the power beyond reasonable period, is no longer res integra. In the case of Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim (supra), the Apex Court, while dealing with the provisions of section 84C of the Act of 1948, has held and observed that the Act does not prescribe any time for initiation of the proceedings. It has further held and observed 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 exercise of powers by the Mamlatdar & ALT after a period of 7 years, would definitely hit by the unreasonableness.
16. Also, in the case of Rameshbhai Ambalal Shah v. State of Gujarat (supra), it has been held in paragraphs 17 and 24 which read thus:
"17. It is clear from the various judgments of the Hon'ble Supreme Court that where a statute provides any suo-motu power of revision without prescribing any period of limitation, the power must be exercised within a reasonable time and what is 'reasonable time' has to be determined on the facts of each case. While exercising such power, several factors need to be kept in mind such as effect on rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bonafide transfers, the orders attaining finality under the provisions of other Acts (such as Land Ceiling Act) etc. Even the two judgments of the Supreme Court which have been relied upon by the learned counsel for the appellants explain the same principles of law that a reasonable period would be taken upon the factual circumstances of the concerned case. There cannot be any empirical formula to determine the question. The Court/authority considered the question whether the period is reasonable or not as to take into account surrounding circumstances and the relevant factors to decide that question. In the present case, we find that the original owner i.e. the appellants very consciously entered into a transaction way back in the year 1970 and sold land to respondent No.1. It is not their case that at the relevant point of time they were mislead by respondent No.1 herein in any manner or that any fraud was played upon them by respondent No.1 in entering into the transaction and on their own free will and volition they executed the sale deed in favour of the respondent No.1 and Page 20 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 accepted the sale consideration. No steps were taken by them for a period of almost 15 years and and it is only when the Mamlatdar & ALT, Gandhinagar thought fit to take transaction in suo-motu review that all of a sudden a thought came in the mind of the appellants to say that the transaction was illegal or invalid and now the land should be restored to them as it is.
24. In one of the recent pronouncements by Full Bench of this High Court, rendered in Letters Patent Appeal No.1875 of 2007 and analogous appeals, decided on 21.07.2011, the Full Bench in almost an identical fact situation with the only distinguishing feature that it was a case arising from Bombay Prevention of Fragmentation of Consolidation of Holdings Act, 1947, has held as under:
["Article 226 of the Constitution is an equitable extraordinary jurisdiction, it should be exercised to prevent perpetration of legal fraud and to promote good faith and honest. It cannot be exercised in favour of a defaulting party to frustrate legitimate claim of the other party. [AP State Financial Corporation, (1994) 2 SCC 647]"] Even the void transaction under Sec. 9(1) if allowed to remain effective for considerably long period, the Authority named therein will be precluded from initiating proceedings to annul it. Even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective till it is invalidated and set aside. If its existence is allowed to remain for a considerable period and with the passage of time it brings about several changes, creating valuable rights in favour of considerable Section of people, it is difficult to accept the proposition that despite the change the Collector would be entitled to exercise power under sub-sec. (3) of Sec. 9 of the Act. When the things have been allowed to remain as such for years together, the purchaser cannot be deprived of his possession so as to render indirect benefit to the seller who was equally responsible for entering into such illegal transaction. When the Authority had considerable opportunities to know about the transaction and despite that, has not taken any action thereon for years together, such Authority cannot be allowed to exercise powers conferred upon it at a belated stage. The concept of reasonableness of time will equally apply in such cases. Therefore, even powers conferred upon the Collector under sub-secs. (2) and (3) of Sec. 9 are required to be exercised within a reasonable time. [Valjibhai Jagjivanbhai V/s. State of Gujarat, 2005 (2) GLH 34]."
17. In the case of Chandulal Gordhandas Ranodariya & Ors. v.
State of Gujarat & Ors. (supra), the Division Bench, has referred to the judgment in the case of Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim (supra) as well as State of Punjab & Ors. v.
Page 21 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 Bhatinda District Cooperative Milk Produceers Union Ltd. reported in (2007) 11 SCC 363, holding that if the statute does not prescribe the 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.
18. In the case of Bharatbhai Naranbhai Vegda v. State of Gujarat (supra), the Division Bench, in paragraph 12, has held and observed that the limitation provided for initiation of the action or the consideration of the reasonable period for initiation of the action or the bar operating of delay for initiation of the action are jurisdictional aspects on the power of the authority which has initiated the action. The bar of delay operates against the exercise of the jurisdiction or that the initiation of the action is beyond reasonable period as per the well settled principles of law, the action can be said as without jurisdiction. Paragraph 12, reads thus:
"12. We may first consider the question for interference to the order passed by the learned Single Judge. There cannot be second opinion on the aspect that if two views are possible and the learned Single Judge has taken one view, the Division Bench of this Court in exercise of the jurisdiction under Letters Patent would be loathe to interfere and may not entertain the appeal, but in a case where only one view was possible or that well settled legal position is not considered, which goes to the root of the matter for the jurisdiction of the authority, such would be an appropriate case for interference for exercise of the jurisdiction under the Letters Patent. Examining the case on the said aspects, we find that as per the above referred decisions of the Apex Court, the limitation provided for initiation of the action or the consideration of the reasonable period for initiation of the action or the bar operating of delay for initiation of the action are jurisdictional aspects on the power of the authority which has initiated the action. If as per the well settled principles of law, the bar of delay operates against the exercise of the jurisdiction or that the initiation of the action is beyond reasonable period as per the well settled principles of law, the action can be said as without jurisdiction. If an action is without jurisdiction, as observed by the Apex Page 22 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 Court in the above referred decision in the case of State of Punjab (supra), the petition under Article 226 of the Constitution can be maintained and the jurisdiction of this Court under Article 226 of the Constitution can be invoked. If the action is decided on the ground of jurisdiction and found to be without jurisdiction by the Court while undertaking judicial scrutiny under Article 226 of the Constitution, the only view possible is that of the action without jurisdiction. If the action was without jurisdiction, we do not see that it would fall in the arena of discretion to be considered while exercising the power under Article 226 of the Constitution. We may record that the contention is not based on the conduct on the part of the petitioners which may lead the Court to decline the interference but the contention is on the ground that two views were not possible as against the settled legal position on the point of reasonable period and the delay for initiation of the action. Hence, we find that it is a fit case for interference with the order passed by the learned Single Judge and it cannot be said to be outside the jurisdiction of the appellate power of the Division Bench of this Court in Letters Patent as sought to be canvassed."
19. Therefore, it is well established principle of law that if the Act does not prescribe any time for initiation of proceeding, it does not mean that it can be exercised at any point of time. In other words, wherever the power is vested in the statutory authority without prescribing any time limit such power should be exercised within a reasonable time. In the present case, undeniably, the powers in the first instance were exercised by the Mamlatdar & ALT, Vadodara after a period of 7 years which, cannot be said to be a reasonable period.
20. Adverting to the issue as regards exercise of suo motu powers exercised by the Deputy Collector (Land Reforms), relevant would be section 76A of the Act of 1948, which reads thus:
"S. 76A. Where no appeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the Divisional Officer or the State Government, at any time,-
(a) call for the record of any inquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal. as the case may be, and Page 23 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022
(b) pass such order thereon as he deems fit;
Provided that no such record shall be called for after the expiry of one year from the date of such order and no order of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard."
21. Proviso to section 76A of the Act of 1948, enumerates that no such record shall be called for after the expiry of one year from the date of such order and no order of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard. Proviso to section 76A, has been interpreted by this Court in the case of Thakorbhai Tribhovandas Rao & Ors. v. State of Gujarat & Ors. (supra). Paragraph 3, reads thus:
"3. Undisputedly, the order of the Mamlatdar and A. L. T., Matar which are sought to be revised under Sec. 76-A were passed in the years 1971, 1972 and 1973. The petitioners have received the notice to appear before the Deputy Collector only in Sep. 1981. The provisions of Sec. 76A read as under:
["76A. Where no appeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the Divisional Officer or the State Government, at any time,-
[(a) call for the record of any inquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal. as the case may be, and] [(b) pass such order thereon as he deems fit;
[Provided that no such record shall be called for after the expiry of one year from the date of such order and no order of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard."] It will be seen that no record can be called for by the Collector after the expiry of one year from the date of the order made by the Mamlatdar or the Tribunal for the purpose of satisfying Page 24 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 himself as to the legality or propriety of such order or as to the regularity of the proceedings of the Mamlatdar or Tribunal. The proviso to Sec. 76A would be applicable even in a case where a Reference is made by the State Government requiring the Collector to call for the record and proceedings for the purpose of satisfying himself as to the legality of propriety of the order. The limitation prescribed by the proviso for the exercise of the revisional powers beyond the expiry of one year from the date of order is clear and explicit and the Collector will have no revisional power to be exercised beyond the period of one year prescribed by the proviso to Sec. 76A. Therefore, the only contention which was raised on behalf of the petitioners against the validity of the impugned notices belatedly seeking to take up the orders of the Mamlatdar and A. L. T. passed in 1971, 1972, 1973 for Revision under Sec. 76A of the act deserves to be accepted. The learned Counsel appearing for the respondents had hardly any answer to the mandatory provisions of the proviso to Sec. 76A prescribing the time limit during which the power could be exercised for revising the order of the Mamlatdar or the Tribunal, This petition therefore, deserves to be allowed. The impugned notices issued by the Deputy Collector, Kheda in Tenancy Revision Nos. 183 to 224 dated 4-9-1981 seeking to revise under Sec. 76A, the orders made by the Mamlatdar or the Tribunal in 1971, 1972 and 1973 are hereby set aside. Rule is made absolute accordingly with no order as to costs."
22. Yet in another decision in the case of Thakorbhai Tribhovandas Rao & Ors. v. State of Gujarat & Ors. (supra), it has been held and observed that the limitation prescribed by the proviso for exercise of revisional powers beyond the expiry of one year from the date of the order is clear and explicit and the Collector will have no revisional power to be exercised beyond the reasonable period of one year prescribed by the proviso to section 76A of the Act of 1948. In the present case, the order of the Mamlatdar & ALT is dated 15.7.2002 whereas, the revisional powers under section 76A of the Act of 1948, were exercised in the year 2005 i.e. clearly beyond the period of one year. Applying the aforesaid principle to the facts of the present case, the Deputy Collector (Land Reforms), could not have taken in suo motu revision the order dated 15.7.2002 of the Mamlatdar & ALT after a period of one year. On this count as well, the order of the Deputy Collector (Land Reforms) dated 3.6.2006 was erroneous.
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23. Before concluding, the additional affidavit of the petitioner dated 19.7.2022 tendered by Mr Amit Thakkar, learned advocate, is required to be taken note of. It, inter alia, undertakes that the petitioner shall not use the agriculturist status to buy any new agricultural land in future solely based on the present judgment. The contents of the additional affidavit, read thus:
"I, Chimanbhai Khimchandbhai Mehta, male, aged 90 years, residing at : Deepak Farm, Besides Iskon Heights, Gotri Main Road, Vadodara, have temorarily come down to "SUM", 93, South Main Road, Koregaon Park, Pune, the petitioner herein, do hereby solemnly affirm and state on oath as under:
1. I state that, the present petition arises out of the proceedings u/s 84-C of the Tenancy Act, in respect of the lands of village, Vemali purchased by me vide Registered sale deeds dated 10.06.1992.
2. I hold agricultural lands in the State of Gujarat at villages Gotri and Vemali which are referred to in the petition, in pursuance to permission granted by the Revenue Department, State of Gujarat under the ULC Act.
3. I further state that I shall not use the Agriculturist status to buy any new agricultural land in future, solely based on the order that may be passed in this petition."
24. Under the circumstances, the petition deserves to be allowed on the limited ground of exercise of powers by the revenue authorities beyond reasonable period as well as revisional powers exercised by the Deputy Collector under section 76A of the Act of 1948 beyond the period of one year. Resultantly, the order dated 30.1.2015; order dated 15.6.2021, passed in revision application no.TEN/BA/466/2009 and revision application no.TEN/CA/7/2015 respectively so also the order dated 4.9.2009 passed in revision application no.31 of 2007, are hereby quashed and set aside. Quashing of the orders, shall not be construed to be conferring the status of agriculturist upon the petitioner. Needless to clarify that the petitioner shall adhered to the additional affidavit filed by him in the captioned proceedings and shall not take any advantage of the Page 26 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022 C/SCA/11559/2021 JUDGMENT DATED: 25/07/2022 status of an agriculturist.
25. The captioned writ petition succeeds and is accordingly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
Sd/-
(SANGEETA K. VISHEN,J) RAVI P. PATEL Page 27 of 27 Downloaded on : Sat Dec 24 21:57:14 IST 2022