Gujarat High Court
Kantilal Lachimal Gupta Since Deceased ... vs Special Secretary (Appeals) Revenue ... on 9 April, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/1568/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1568 of 2017
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KANTILAL LACHIMAL GUPTA SINCE DECEASED THROUGH
Versus
SPECIAL SECRETARY (APPEALS) REVENUE DEPARTMENT
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Appearance:
MR DHAVAL D VYAS(3225) for the PETITIONER(s) No. 1,1.1
MR MANAN MEHTA, AGP (1) for the RESPONDENT(s) No. 1,2
MR SP MAJMUDAR(3456) for the RESPONDENT(s) No. 3,4,5
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 09/04/2018
ORAL ORDER
Heard learned advocate Mr.Dhaval Vyas for the petitioners, learned Assistant Government Pleader Mr.Manan Mehta for the respondent Nos.1 and 2 and learned advocate Mr.S.P. Majmudar for private respondents.
2. By filing this petition, the petitioners challenged order dated 29th July, 2016 passed by the Secretary, Revenue Department (Appeals), Ahmedabad, dismissing the Revision Application No.26 of 2009 preferred by the petitioners, thereby maintaining order dated 21st August, 2009 by the Collector, Navsari.
3. The attendant facts are that land bearing City Survey No.25 at City Navsari was shown as tenure 'A' land in the property card. Pursuant to survey undertaken in the year 1973, portion of the land out Page 1 of 7 C/SCA/1568/2017 ORDER of this land was declared to be tenure 'C' land by the City Survey Inquiry Officer and it was so ordered on 19th April, 1973. Against the said order dated 19th April, 1973, private respondents herein preferred Appeal before the Collector, Navsari, on 22nd August, 1990. Appeal was allowed by the Deputy Collector and the order of the City Survey Inquiry Officer in so far as it change the nature of tenure of the land, was set aside. The land was treated as tenure 'A' land accordingly.
3.1 It was given out that 'A' tenure land are revenue free by customs, whereas 'C' tenure land are those which invite assessment payable to the government under Section 48 of the Bombay Land Revenue Code, 1879, for non-agricultural purpose.
3.2 It appears that the Collector opined on 19th December, 2007 to take the order of the Deputy Collector declaring the land as 'A' tenure, into Revision. The Collector proceeded to take into suo motu revision order dated 31st December, 1990 of the Deputy Collector, and issued show cause notice dated 19th December, 2007. After hearing the parties, Collector passed order dated 21st August, 2009 cancelling the order of the Deputy Collector treating the land as 'A' tenure category. The Collector remanded the case to the City Survey Superintendent, Navsari.
3.3 It was against the aforesaid order dated 21st August, 2009 passed by the Collector, Navsari, Page 2 of 7 C/SCA/1568/2017 ORDER that Revision Application came to be filed before the revisonal authority - respondent No.1 herein, to culminate into the impugned order.
4. On merits it is the case that right from the times of the Princely State of Baroda, the land in question was treated as vazifa land in the gamtal which land was used for residential purposes, therefore the same was categorised as tenure 'A'. The case of the petitioners were that for all material times since old days, the record showed the category as tenure 'A'. It was therefore submitted that the Deputy Collector was justified in allowing the Appeal on 31st December, 1990 cancelling the decision of the City Survey Inquiry Officer taken to show the land as 'C' tenure.
5. Irrespective of the above aspect, the impugned orders were found to be liable to be set aside on the sole ground, without requiring to be adverted to other aspects, that the Collector acted to exercise his powers of suo motu review after unreasonably long time. Order dated 31st December, 1990 of the Deputy Collector was taken into suo motu review after more than 25 years by issuing show cause notice dated 19th December, 2007, consequentially by passing order dated 21st August, 2009 which in turn came to be upheld by the revisional authority, impugned herein. Period of more than two decades has to be treated as too unreasonably long to be countenanced in law.
Page 3 of 7 C/SCA/1568/2017 ORDER5.1 The position of law that the suo motu powers by a statutory authority have to be exercised within a reasonable time, is well settled and reiterated. Even if time limit for exercise of such powers is not prescribed, the statutory authority would be bound to exercise his powers within a reasonable time. The Supreme Court in Santoshkumar Shivgonda Patil v. Balasaheb Tukaram Shevale [(2009) 9 SCC 352], held as under.
"It seems to be fairly settled that if a statute does not prescribe the time-limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu of otherwise, it is plain that exercise of such power within reasonable time is inherent therein." (Para 11) 5.2 Right from the decision of the Apex Court in State of Gujarat v. Patel Raghav Natha [AIR 1960 SC 1297], the principle is well-settled that statutory authority is required to exercise its powers within a reasonable time even though no time limit may have been prescribed for such exercise. This law was reiterated by this Court in Bhagwanji Bawanji v. State of Gujarat [1971 GLR 156] and Ranchhodbhai v. State [25 (2) GLR 1225]. In case of Ranchhodbhai (supra), it was held that the proceedings initiated against the purchaser of the agricultural land allegedly in contravention of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, after a period of 7 years was without Page 4 of 7 C/SCA/1568/2017 ORDER jurisdiction. Similar, proposition was laid down in Rajul Cooperative Housing Society Ltd. v. State [1984 GLH 968].
5.3 In Dudhiben Muljibhai Patel v. State of Gujarat being Special Civil Application No.758 of 1997, decided on 26th February, 2016, the principle of requirement of exercise of powers by the authorities within reasonable time was reiterated, to observe "...it clearly emerges that the Deputy Collector exercised the powers after a long gap of 32 years. It is cardinal principle that any statutory power vested in an authority would be required to be discharged within a reasonable time, even if no period is prescribed for such exercise. Inordinate and unreasonable delay is treated as vitiating factor itself. The principle applies with force in respect of the powers exercised or functions discharged by the revenue authorities under the revenue jurisdiction and they are not allowed to upset the action taken long back which may have resulted into vesting of rights and creation of equities with passage of time".
5.4 As far as the facts of the present case are concerned, they are akin to one involved in State of Gujarat v. Sanidhya Co-operative Housing Society Limited being Letters Patent Appeal No.485 of 2014 decided by the Division Bench of this Court on 23rd July, 2014. The issue in that case was also regarding categorisation of land bearing Tika No.60 of City Survey No.3065 which was also at Navsari. The said Page 5 of 7 C/SCA/1568/2017 ORDER land was shown to be 'A' tenure land right from the inception of the practice of categorising the tenure of the lands. On 14th September, 1973, the City Survey Officer changed the categorisation from 'A' tenure to 'C' tenure. In that case also the Deputy Collector's order was taken by the Collector in suo motu revision after 12 years. Learned Single Judge of this Court allowed the petition and the Letters Patent Appeal was dismissed.
5.5 Since lands in both the cases are situated at Navsari, the following observations by the Division Bench are directly apply.
"Right from the year 1914, the land was shown as revenue free land. When categorization was applied, from the inception it was shown as A tenure land. This position obtained even during the erstwhile Gaekwad State times. Only in the year 1973, the City Survey Officer changed the tenure from A to C. Nothing is placed on record to suggest that such change in the record was backed by any reasoned order. Apparently, no order was passed. As recorded by the learned Judge, neither any notice was issued before changing the entry nor the change in entry was communicated to the owners. These facts must be seen in light of the alleged delay on the part of the Collector in taking suo motu revision under rule 108 of the Bombay Land Revenue Rules."
"Even otherwise, contemporaneous materials would suggest that the land all throughout was treated as A tenure land. It was only in the year 1973 that the City Survey Officer unilaterally without giving reasons changed the categorization. Such order was correctly reversed by the Deputy Collector. The Collector took the order of the Deputy Collector in suo motu revision after a long period of time. ... ..."
6. For the aforesaid reasons, when the Collector exercised powers after more than 20 years and took the order of the Deputy Collector in the suo motu revision to set aside the same, such proceedings Page 6 of 7 C/SCA/1568/2017 ORDER were rendered patently illegal. In upholding and confirming such an order of the Collector, the revisional authority committed a manifest error. Therefore the impugned order could hardly sustain in law.
7. Resultantly, order dated 28th July, 2016 passed by respondent No.1 - revisional authority dismissing the Revision Application as well as order of the Collector dated 21st August, 2009 passed in Review Application No.15 of 2007 upheld by the revisional authority, both are set aside. The petition is allowed.
(N.V.ANJARIA, J) Anup Page 7 of 7