Gujarat High Court
Newage Petrochem vs Additional Chief Secretary on 31 March, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/6280/1995 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6280 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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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 ?
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NEWAGE PETROCHEM....Petitioner(s)
Versus
ADDITIONAL CHIEF SECRETARY....Respondent(s)
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Appearance:
MR BS PATEL, ADVOCATE for the Petitioner(s) No. 1
MR. TIRTHRAJ PANDYA, AGP for the Respondent(s) No. 1
MR UM SHASTRI, ADVOCATE for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 31/03/2016
CAV JUDGMENT
The present petition is directed against order dated 29th November, 1989, passed by the Additional Chief Secretary (Appeals), Revenue Page 1 of 10 HC-NIC Page 1 of 10 Created On Tue Apr 05 01:39:54 IST 2016 C/SCA/6280/1995 CAV JUDGMENT Department-respondent No.1 herein. Thereby, the said authority in exercise of suo motu powers under section 211 of the Bombay Land Revenue Code, 1879, cancelled the non-agricultural permission granted by the Taluka Development Officer as per his order dated 17th December, 1981. It was required from petitioner to obtain necessary permission under section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948; it was provided further that for period of two months the factory building of the petitioner on the land in question shall not be removed.
2. Outlining the relevant facts available from the pleadings and record of the petition, the land bearing block No. 115 admeasuring five acres and seven gunthas situated in the sim of village Pratappura, Taluka Halol, Panchmahal, belonged to one Mangalsingh Gulabsingh and others. Said Malgalsingh applied for getting the land converted into Non-Agricultural. Respondent No.2-Taluka Development Officer granted N. A. permission on 17th December, 1981. Thereupon, entry came to be muted in the revenue records on 17th March, 1982. The said land thereupon came to be sold to one Sheth Sunilkumar. The present petitioner purchased two acres of land out of the total area from said Sheth Sunil Kumarby way of registered deed of sale dated 16th April, 1982, bearing No. 547. The petitioner started a small-scale industry for production of industrial oil. The financial assistance also obtained by the petitioner from Gujarat State Financial Corporation. He got the necessary permission from Gujarat Pollution Board.
3. Respondent No.1 issued a show-cause notice dated 24th February, 1986 to the petitioner stating that respondent No.1 did not have authority in law to grant the N.A. Permission, calling upon the petitioner to show- cause as to why the permission should not be cancelled. The powers Page 2 of 10 HC-NIC Page 2 of 10 Created On Tue Apr 05 01:39:54 IST 2016 C/SCA/6280/1995 CAV JUDGMENT under section 211 of the Code were exercised suo motu by respondent No.1. On perusal of the copy of the aforesaid show cause notice from the record, it was seen that two main grounds were mentioned therein. First was that the powers under Section 65 of the Land Revenue Code were conferred by the District Panchayat to the Taluka Panchayat, but Taluka Panchayat had not delegated those powers upon the Taluka Development Officer, therefore the Taluka Development Officer granted non- agricultural permission without having any authority in law. The second reason given was that the land in question was a new tenure land for which before converting it into Non-Agricultural purpose, a permission of competent authority was necessary to be obtained. In the said notice, it was directed to maintain status quo with regard to the land. The petitioner sent written reply-cum-representation. However, the impugned order ensured.
4. This court heard learned advocate Mr. Patel for the petitioner and learned Assistant Government Pleader Mr. Tirthraj Pandya for the respondent authorities.
5. The first premise on which the respondent No.1 proceeded to exercise his powers for taking the matter in suo motu revision, has no room to sustain. It was on the ground that without delegation by the Taluka Panchayat, the Taluka Development Officer did not have powers to grant non-agricultural permission, because even though the Taluka Panchyat was invested with such powers by the District Panchayat, they were not exercisable by the Taluka Development Officer. A decision of this court in M/s. Yashkamal Builders, Baroda vs. State of Gujarat and Others [1989 (1) GLH 177] answers and covers the issue. By virtue of powers conferred under section 157(1) of the Act on the State Page 3 of 10 HC-NIC Page 3 of 10 Created On Tue Apr 05 01:39:54 IST 2016 C/SCA/6280/1995 CAV JUDGMENT Government, the powers of the Collector under section 55 of the Bombay Land Revenue Code came to be transferred to the District Panchayat and subsequently under the orders of the State Government, they were given to the Taluka Panchayats. It was held that when Taluka Panchayat had exercised the said powers, which were of administrative character, they came to be vested in the Taluka Development Officer under section 123(1) of the Gujarat Panchayats Act, 1961. It was held that the Taluka Development Officer was empowered to grant permission for non- agricultural use and the State Government cannot set aside such order on the ground that the order was passed by the Taluka Development Officer.
5.1 The following observations lay down the law in M/s Yashkamal Builders (supra), "It appears from Sub-section (1) of Section 123 that the executive power of a Taluka Panchayat for the purpose of carrying out the provisions of the Panchayats Act, vests in the Taluka Development Officer. Under Section 157(1) of the Panchayats Act the State Government may, subject to such conditions as it may think fit to impose, transfer by an order published in the Official Gazette to a District Panchayat any such powers, functions and duties relating to any matter as are exercised or performed by the State Government or any Officer of Government under any enactment which the State Legislature is competent to enact, or otherwise in the executive power of the State, which appears to relate to matters arising in the District and are administrative in character. It is by virtue of this power conferred on the State Government that the powers conferred on the Collector under Section 65 of the Code were transferred initially to the District Panchayat and later on under the order passed by the State Government under Sub-section (3) of Section 157 of the Panchayats Act to the Taluka Panchayats. Power under Sec 65 of the Code conferred on the Collector is an executive power or a power of an administrative character. It is, therefore, that it was transferred or delegated to Page 4 of 10 HC-NIC Page 4 of 10 Created On Tue Apr 05 01:39:54 IST 2016 C/SCA/6280/1995 CAV JUDGMENT the District Panchayats and Taluka Panchayats. Therefore, when Taluka Panchayat exercises power under Section 65 of the Code it is an executive or administrative power. Once this becomes clear there is no doubt that such power vests in Taluka Development Officer under Section 123(1) of the Panchayats Act. But apart from that it is not disputed that power under Section 65 of the Code has not been conferred on any committee or Presiding Officer or any Officer of the Taluka Panchayat under Clause (b) of Sub-section (2) of Section 123 of the Panchayats Act. Thus Taluka Development Officer will be entitled to exercise power under Section 65 of the Code by virtue of Sub- section (2) of Section 123. Therefore, whether the power conferred under Section 65 of the Code is an executive or administrative or not the Taluka Development Officer has power to act under this Section." (para-8) 5.2 The aforesaid decision was followed in another decision of this court in Patel Mohanbhai Ishwarbhai vs. State of Gujarat [2007 (1) GCD 540]. In the said case also the State Government had initiated proceedings under section 211 of the Bombay Land Revenue Code to set aside the order of the Taluka Development Officer granting N.A. Permission. In that case also one of the ground on which the authority acted was the restrictions under section 43 of the Bombay Tenancy and Agricultural Lands Act. The court held that it was not a case of inherent lack of jurisdiction. It was held that it could not be said that the Taluka Development Officer did not have the authority to grant permission. The ground which also weighed with the court was that the powers to cancel the N.A. permission were exercised by the State Government after unreasonable delay.
6. In the present case, the original occupant-owner was granted the N. A. permission for land admeasuring 20943 sq. mtrs. The petitioner who purchased part of the land in April, 1982, came to be granted the Page 5 of 10 HC-NIC Page 5 of 10 Created On Tue Apr 05 01:39:54 IST 2016 C/SCA/6280/1995 CAV JUDGMENT permission for construction on 26.11.1982. The suo motu proceedings came to be initiated by giving notice dated 24.02.1986 seeking to cancel the N. A. permission granted under section 65 of the B.L.R. Code.
6.1 The question about the reasonable time within which powers under Section 211 of the Code may be exercised was addressed by the Apex Court in the known decision in State of Gujarat Vs Raghav Natha [1969 AIR 1297]. In that case, the Supreme Court was concerned with the question about the time limit for exercise of powers in the context of permission under Section 65 of the Code only. It was held that a conjoint reading of Section 211 and Section 65 showed that the revisional powers has to be exercised within reasonable time, and as far as order under Section 65 of the Code is concerned, such reasonable time would be of few months from the date of order of the Collector. It was reasoned that the permissible limit of time for exercise of powers under Section 211 was indicative from Section 65 itself, as it provide for period of three months and such period of three months is considered to be a proper period for the Collector to decide about the grant of non-agricultural permission; if the period of three months passes by and the Collector does not decide the application under Section 65, the legislature has in such eventuality viewed the matter as urgent and has provided that where the application remains undecided after the said period of three months, the permission shall be treated as deemed granted.
6.2 In another Supreme Court decision in Mohmad Kavi Mohmad Amin Vs Fatmabai Ibrahim [(1997) 6 SCC 71] which addressed the question of suo motu inquiry by the Mamlatdar under Section 84C of the Bombay Tenancy and Agricultural Lands Act, 1976, a period little beyond one year was held to be amounting to unreasonable delay. The Page 6 of 10 HC-NIC Page 6 of 10 Created On Tue Apr 05 01:39:54 IST 2016 C/SCA/6280/1995 CAV JUDGMENT Supreme Court in Manchharam Vs SP Pathak and others Civil Appeal No. 1262 (N) of 1978 decided on 28.09.1983, stated the principle following Raghav Natha (supra) as under, "where the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of power inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily available in State of Gujarat v. Patel Raghav Natha and others (1970) 1 SCR
335."
6.3 This Court in Parshottam Ramji Rathod Vs Dhirajlal Dharamshi Mistry [1999 (2) GLH 310] and in Shree Ravidarshan Cooperative Housing Society Vs Praffulkumar Thakar [2000 (2) GLR 1693] reiterated the principle of exercise of power within reasonable time.
6.4 It is trite principle that any statutory power, eventhough no time- limit is prescribed by the legislature for exercise of such power, has to be exercised within a reasonable time. The delay would seriously prejudice to a person against whom the adverse decision is taken. Furthermore, on the basis of the order passed, the petitioner may have changed his position by incurring expenses and acting on the basis of the action/order sought to be revised or annulled after gap of time. In case of permission for non-agriculture, this principle is applied more appropriately.
6.5 Therefore when the suo motu revision powers under Section 211 of the Code in relation to order under Section 65 of the Code has been exercised after a considerable gap of five years in the present case, this unreasonable delay vitiated the exercise of powers. The impugned orders are liable to be set aside on the said sole ground.
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7. It was submitted next that when the first transaction was without obtaining permission of the competent authority as section 43 of the Tenancy Act operated, the Non-Agricultural permission could not have been granted. Once the vitiation in law takes place, aforesaid submission cannot stand to be countenanced. As is noted and held hereinabove that the order passed in exercise of suo motu powers under section 211 of the Code is unsustainable in view of the delay of nearly five years, the exercise of powers and the order were rendered bad in law on that count, and brought about pervading effect on all other aspects also. It also emerged that after obtaining Non-Agricultural permission, the petitioner set up on the land in question his factory and started business making investment. The factory was started after taking necessary permissions or approval from the competent authorities as required under the various laws. The factory commenced its operations and has been still running. In other words, the petitioner after grant of N.A. Permission, acted upon the same and changed his position. The new equities and the change of status to his advantage occurred. This aspect is relevant in judging the prejudice because of unreasonably belated exercise of powers. For exercise of suo motu powers in respect of orders passed under section 65 of the code, it is a period of few months only which is considered to be the reasonable period, and if the powers are exercised beyond few months, it would amount to unpardonable delay not permissible in law.
8. Another decision of this court in Mali Amrutlal Becharbhai and others vs. the District Collector of Banaskantha [AIR 1994 Guj. 36] comes to the rescue of the petitioners. In that, this court dealing with order passed under of section 65 of the Code converting land into Non- Agricultural purpose vis-à-vis the cancellation thereof on the ground of Page 8 of 10 HC-NIC Page 8 of 10 Created On Tue Apr 05 01:39:54 IST 2016 C/SCA/6280/1995 CAV JUDGMENT applicability of section 43 of the Bombay Tenancy Act, held that once the N.A. Permission was granted, the land would cease to be an agricultural land. In that case, it was held that the permission could not have been cancelled on the ground of alleged failure by tenant to personally cultivate the land. Applying this principle, when the first ground itself which was an origin for issuance of notice under section 211 of the Code about the power of the Taluka Development Authority, is found to be not sustainable, the grant of N.A. permission was not tainted with illegality. This being the position obtained, the land in question upon conversion into non-agricultural, was denuded of its agricultural character. The submission of the other side with reference to provisions of section 43 of the Act cannot be countenanced as that aspect was applicable only so long the land remained agricultural in nature.
9. An infirmity in law in respect of the impugned exercise of powers and the resultant order may arise on yet another count. It is well settled principle that an authority exercising powers under one statute, cannot proceed to decide an aspect or issue falling under the different law, and justify thereby its exercise of powers. The respondent No.1 was exercising his powers under the Bombay Land Revenue Code in the Revenue jurisdiction and it was not within his area of powers to advert to an aspect arising under the Tenancy law by concluding that since provisions under the said law were breached, the permission granted under the revenue jurisdiction was liable to be recalled. This proposition of law has been laid down in Evergreen Apartment Cooperative Society Vs Special Secretary, Revenue Department [1991 (1) GLR 113] and other judgments.
10. Thus, viewed from any standpoint, the impugned order dated 29th Page 9 of 10 HC-NIC Page 9 of 10 Created On Tue Apr 05 01:39:54 IST 2016 C/SCA/6280/1995 CAV JUDGMENT November, 1989 passed by respondent No.1-Additional Chief Secretary (Appeals), Revenue Department, cannot sustain and the same is hereby quashed and set aside. Consequently, the order of the Taluka Development Officer dated 17th December, 1981 granting non-agricultural permission in respect to the land in question shall stand.
11. Petition is allowed. Rule is made absolute with no order as to costs.
(N.V.ANJARIA, J.) cmjoshi Page 10 of 10 HC-NIC Page 10 of 10 Created On Tue Apr 05 01:39:54 IST 2016