Gujarat High Court
Satyambhai Keshavlal Patel vs State Of Gujarat on 24 October, 2019
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/9622/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9622 of 2018
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CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 9622 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 7251 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 7211 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9643 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 7212 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 7200 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 7250 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9695 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9747 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9684 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9655 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9656 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 7249 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9653 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 7213 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9662 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9683 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9647 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9738 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9690 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9732 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9731 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9646 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 7214 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9682 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9688 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9679 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9649 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9668 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9685 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9665 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9728 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9756 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9735 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9645 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9642 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9658 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9697 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9749 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9696 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9718 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9736 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9720 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9723 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9737 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9692 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9678 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9725 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9753 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9733 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9751 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9648 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9746 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9694 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9739 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9691 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9660 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9752 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9722 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9663 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9750 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9637 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9748 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9742 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9726 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9686 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9681 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9680 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9754 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9689 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9729 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9717 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9740 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 9623 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to No see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== SATYAMBHAI KESHAVLAL PATEL Versus STATE OF GUJARAT & 2 other(s) ========================================================== Appearance:
Special Civil Application Nos. 9622, 9643, 9695, 9747, 9684, 9655, 9656, 9653, 9662, 9683, 9647, 9738, 9690, 9732, 9731, 9646, 9682, 9688, 9679, 9649, 9668, 9685, 9665, 9728, 9756, 9735, 9645, 9642, 9658, 9697, 9749, Page 4 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT 9696, 9718, 9736, 9720, 9723, 9737, 9692, 9678, 9725, 9753, 9733, 9751, 9648, 9746, 9694, 9739, 9691, 9660, 9752, 9722, 9663, 9750, 9637, 9748, 9742, 9644, 9726, 9686, 9681, 9680, 9754, 9689, 9729, 9717, 9740 & 9623 of 2018 MR HM PARIKH, SENIOR ADVOCATE WITH MR VINOD M GAMARA(5910) for the Petitioner(s) No. 1 MR TAPANKUMAR M ACHARYA(8701) for the Petitioner(s) No. 1 MR K.M. ANTANI, ASSISTANT GOVERNMENT PLEADER/PP(99) for the Respondent(s) No. 1 MR HS MUNSHAW(495) for the Respondent(s) No. 2 MR AM PAREKH(562) for the Respondent(s) No. 3 Appearance In Special Civil Application Nos.7200, 7251, 7211, 7212, 7250, 7249, 7213 and 7214 of 2018 MR HM PARIKH, SENIOR ADVOCATE WITH MR VINOD M GAMARA(5910) for the Petitioner(s) No. 1 MR TAPANKUMAR M ACHARYA(8701) for the Petitioner(s) No. 1 MR K.M. ANTANI, ASSISTANT GOVERNMENT PLEADER/PP(99) for the Respondent(s) No. 1 MR AM PAREKH(562) for the Respondent(s) No. 3 MR PRANAV V SHAH(2516) for the Respondent(s) No. 2 ========================================================== CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 24/10/2019 CAV COMMON JUDGMENT
1. Since the issue involved in this batch of petitions is almost similar, with the consent of the learned advocates appearing for the parties, all these petitions are being heard together and taken up for final disposal at admission stage.
2. Rule. Learned advocates appearing for the respondents waives service of notice of Rule for the respondents appearing in respective matters.
3. For the sake of convenience, the facts stated in Special Civil Application No.9622 of 2018 are Page 5 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT considered.
4. This petition is filed under Articles 226 and 227 of the Constitution of India, in which, the petitioner has prayed that the order dated 15.02.2018 passed by the respondent Special Secretary, Revenue Department ('SSRD' for short) in MVV/BKP/Suo Motu/AMD/12/2016 be quashed and set aside and, thereby, this Court may confirm the order dated 29.04.2013 passed by respondent No.3 Taluka Development Officer ('TDO' for short).
5. Heard Mr.H.M. Parikh, learned Senior Advocate assisted by Mr.Vinod M. Gamara, learned advocate for the petitioners, Mr.K.M. Antani, learned Assistant Government Pleader for respondent No.1, Mr.H.S. Munshaw, learned advocate for respondent No.2 and Mr.A.M. Parekh, learned advocate for respondent No.3.
6. The facts of the present case in nutshell are as under:
6.1 The dispute in the present case is with regard to land bearing survey No./Block No.154 Paiki situated at Village Aniyari, Taluka Sanand, District Ahmedabad, admeasuring 16187 sq. meters. It is the case of the petitioner that he has purchased the land in question jointly with other persons and registered Sale Deed dated 16.06.2011 came to be executed in his favour. Therefore, revenue Entry No.1128 dated 16.06.2011 came to be mutated in the revenue record.Page 6 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT
It is further stated that on 03.04.2013, the petitioner submitted an application for conversion of the land admeasuring 4046 sq. meters from the disputed land for the purpose of nonagricultural use under Section 65 of the Gujarat Land Revenue Code, 1879 ('the Code' for short). It is stated that respondent No.3 TDO, after following the procedure, allowed the said application vide order dated 29.04.2013.
6.2 It is further stated that the District Development Officer ('DDO' for short) addressed a letter to respondent No.1 SSRD for the purpose of initiating suomotu proceedings and for setting aside the order dated 29.04.2013 passed by respondent No.3. Respondent No.1, therefore, initiated suomotu proceedings against the petitioner and issued notice in the year 2016 and after a period of five years, the impugned order dated 15.02.2018 has been passed by respondent No.1, by which, the order passed by respondent No.3 is quashed and set aside. The petitioner has, therefore, preferred the present petition.
7. Mr.H.M. Parikh, learned Senior Advocate appearing for the petitioner, would contend that the SSRD initiated suomotu proceedings by issuing Show cause Notice, in which, three grounds were referred. The first ground was that the NA permission of one parcel of land was granted in piecemeal by subdividing the same into different parcels of lesser Page 7 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT measurement in the year 201314. The second ground was that the opinion of the competent authorities of the various departments of the State Government were not obtained, as per the Government Resolution dated 01.07.2008. The third ground was that the land was partitioned and thereby fragmentations were made and, therefore, for one land, more than one NA permission was granted.
7.1 Thereafter, it is submitted that respondent No.1, without assigning any reason and without dealing with the contentions of the petitioner as well as respondent No.3 TDO, has passed the impugned order. After referring to the impugned order, it is submitted that no reason has been assigned by respondent No.1 stating which guidelines of the circular or procedure has been violated by respondent No.3. It is only stated that there is a breach of provisions of the Prevention of Fragmentation and Consolidation of Holdings Act, 1947 ("the Fragmentation Act" for short) and, therefore, the proceedings under the said Act are to be initiated. It is also observed by the SSRD that there is a breach of provision of restricted tenure and proceedings to that effect are to be initiated. Therefore, NA permissions which were granted in April, 2013 were cancelled by the SSRD by the impugned order.
7.2 Learned Senior Advocate would further submit that the suomotu proceedings were initiated by Page 8 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT respondent No.1 after a gross delay of approximately threeandahalf years and the impugned order has been passed after a delay of five years. It is submitted that if the suomotu proceedings are initiated after a reasonable period, such proceedings are required to be quashed and set aside. 6.3 Learned Senior Advocate has placed reliance upon the following decisions rendered by this Court:
(1) Bipinchandra G. Dalal & Anr. Vs. State of Gujarat and Anr. reported in 1987(2) GLH 127 (2) Champaklal Manubhai Sopariwala and Ors. Vs. State of Gujarat reported in 1996(2) GLH (U.J.) 35 (3) Cold Cap Tyres Pvt. Ltd Vs. Additional Chief Secretary reported in 2005(1) GLH (U.J.)1
7.3 After referring to the aforesaid decisions, it is contended that suomotu powers are required to be exercised within reasonable time and if the same is exercised beyond reasonable period, such orders are required to be quashed and set aside.
7.4 Learned Senior Advocate would, thereafter, contend that respondent No.3 TDO has obtained all the necessary opinions. He has referred the documents produced from Page37 onwards i.e. the opinion of the Deputy Conservator of Forests, wherein it is stated that Village Aniyari is not covered under the Page 9 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT 'reserved forests'. Page40 is the opinion of the Mamlatdar on various aspects including the fact that the petitioners have paid an amount of Rs.45,32,360/ towards premium. He has also referred Page41, which is the opinion of the Circle Inspector on various aspects. Page42 of the compilation is also referred, which is the letter of the TDO to the Mamlatdar for giving opinion on various points. Page47 is the letter given by the Collector stating that in the cases where DDO has to give decision, the opinions to be given by the Mamlatdar and there is a reference to the Government Resolution dated 01.07.2008, which was to be implemented.
7.5 Mr.Parikh, learned Senior Advocate, thereafter referred Page48, which is the Government Resolution dated 01.07.2008 issued by the Government. Clause5 of the said Government Resolution provides for guidelines narrated in Schedule5. Clause15 thereof provides that the provisions of the Fragmentation Act would not be applicable.
7.6 Thereafter, learned Senior Advocate has referred the Government Resolution dated 08.04.2011 issued by the State Government, which provides for the procedure to be followed at the time of granting NA permission under Section 65 of the Code. By way of the said Government Resolution, power of respondent No.3 TDO is curtailed. It is stated that TDO has power to issue NA permission only for lands admeasuring one acre or less and where the population of the village is less than 3000. It is also stated Page 10 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT in the said Resolution that fragmentation is not to be made for any account holder twice in a year.
7.7 Learned Senior Advocate further submits that the Deputy Collector, vide order dated 15.03.2013 allowed the application given by the petitioner along with other coowners whereby partition of the land in question is permitted between the coowners on certain terms and conditions and, therefore, the land in question was divided into four parts, each part admeasuring 6171 sq. meters. It is submitted that the Deputy Collector is the competent authority, who can pass such order and the said order has not been challenged before the higher forum. At this stage, learned Senior Advocate has submitted that the Prant Officer and the Deputy Collector have filed an affidavit, a copy of which is produced at Page139 of the compilation, wherein the said authority has accepted that the order dated 15.03.2013 is passed by the Deputy Collector with regard to the land in question.
7.8 It is, therefore, contended that the TDO is bound to act as per the order passed by the Deputy Collector and, therefore, respondent No.3 TDO has exercised his powers with respect to land admeasuring less than one acre for each land holder. It is further stated that it is not the case of the respondents that any one owner has applied for the NA permission for the area admeasuring more than one acre or that the TDO has granted NA permission for Page 11 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT land admeasuring more than one acre. It is, therefore, submitted that the order passed by respondent No.3 cannot be said to be without jurisdiction and, therefore, respondent No.1 ought to have initiated the suomotu proceedings within reasonable period.
7.9 Learned Senior Advocate, therefore, urged that the impugned order passed by respondent No.1 be quashed and set aside.
8. On the other hand, Mr.K.M. Antani, learned Assistant Government Pleader, has opposed this petition and mainly contended that the bar of suo motu proceedings shall not be applicable in the cases where the order sought to be revised is without jurisdiction. It is stated that bar of suomotu exercise after a reasonable period would not hold good when question before the writ Court is one of permitting perpetuation of illegality. It is contended that the illegalities were committed by respondent No.3 while passing the impugned order and, therefore, in the present petition when the petitioner is praying for enforcement of the illegal order passed by respondent No.3 TDO, this Court may refuse to grant reliefs prayed for by the petitioners notwithstanding the mandate of the Honourable Supreme Court in the case of State of Gujarat Vs. Patel Raghav Natha reported in AIR 1969 SC 1297. It is, therefore, urged that the decisions, upon which, reliance is placed by the learned advocate for the Page 12 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT petitioner would not render any assistance to him.
8.1 Learned Assistant Government Pleader would, thereafter, submit that in the present case, prima facie, it is revealed from the record that irregularity is committed by respondent No.3 TDO while granting permission to the petitioner under Section 65 of the Code. Learned Assistant Government Pleader referred the instructions given in Government Resolution dated 01.07.2008. After referring to the same, it is contended that the TDO has not followed the procedure prescribed under the said resolution.
8.2 Learned Assistant Government Pleader thereafter referred the Government Resolution dated 08.04.2011 and after referring to the said Resolution, it is submitted that the powers given to the TDO to grant NA permission was restricted by way of the said resolution. It is, therefore, urged that when respondent No.3 TDO has committed illegality while granting permission in favour of the petitioner, no error is committed by respondent No.1 while passing the impugned order.
8.3 Learned Assistant Government Pleader has placed reliance upon the decision rendered by this Court in the case of Uma Small Scale Industrial Coop. Society Ltd. Vs. Collector, Surat & Ors. reported in 2002(1) GLR 226.
8.4 Learned Assistant Government Pleader thereafter Page 13 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT referred the affidavit filed by the respondent authority and contended that even after the order dated 15.03.2013 passed by the Deputy Collector, no effect is given to the said order in the revenue record i.e. 7/12 extract. It is, therefore, urged that the present petition be dismissed.
9. Mr.H.S. Munshaw, learned advocate appearing for the respondent DDO has referred the affidavitin reply filed on behalf of respondent No.2 and contended that when respondent No.3 TDO has not followed the procedure prescribed in Government Resolutions dated 01.07.2008 and 08.04.2011, the respondent DDO informed the SSRD to initiate suomotu proceedings against the order passed by the TDO. It is contended that as the respondent DDO has noticed several irregularities in granting nonagricultural use permission, the request was made. Learned advocate has referred the letter dated 01.02.2016, a copy of which is produced at Pages93 and 94 of the compilation. It is, therefore, urged that no error is committed by the respondent SSRD while passing the impugned order and, therefore, this petition be dismissed.
10. In rejoinder, Mr.H.M. Parikh, learned Senior Advocate submitted that when the Deputy Collector has granted permission whereby he is permitted to partition the land in question on certain terms and conditions, it cannot be said that the TDO has committed any error. It is further submitted that Page 14 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT even nonest order is required to be challenged within reasonable time. It is, therefore, urged that the impugned order passed by the SSRD be quashed and set aside.
11. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it transpires that the petitioner has purchased the land in question along with the other coowners by a registered Sale Deed executed on 16.06.2011. Revenue Entry No.211 came to be mutated in the revenue record. Thereafter, the petitioner and other applicants coowners submitted an application before the Deputy Collector for partition of the land in question. The Deputy Collector, passed order dated 15.03.2013 and granted permission and, thereby, the land in question is subdivided into four different parts. Each portion of the land is admeasuring 4047 sq. meters. Such permission was granted on certain terms and conditions. Copy of the said order is placed on record at Page43 of the compilation. It is further revealed that after granting permission by the Deputy Collector, an application was given to respondent No.3 TDO to grant permission for conversion of the land from agricultural to non agricultural use. Respondent No.3 TDO passed an order dated 29.04.2013, by which, he has given permission under Section 65 of the Code on certain terms and conditions. It would further emerge from the record that respondent No.2 DDO informed respondent No.1 vide letter dated 02.09.2016 about the order passed Page 15 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT by respondent No.3 and requested that suomotu proceedings be initiated for quashing and setting aside the order passed by the TDO. On the basis of the said letter written by respondent No.2 DDO, case No.MVV/BKP/SuoMotu/AMD/12/2016 was registered against the petitioner and Showcause Notice was issued to him and, thereafter, the impugned order is passed on 15.02.2018 by respondent No.1, by which, the order passed by respondent No.3 is set aside.
12. Thus, from the aforesaid facts and circumstances of the present case, it is revealed that suomotu proceedings were initiated against the petitioner after a period of threeandahalf years from the date of passing of the order by respondent No.3 and, thereafter, the impugned order is passed after a period of five years from the date of passing of the order by respondent No.3 and, therefore, the first question which is required to be considered by this Court is that whether the powers are exercised by respondent No.1 within reasonable period, or not.
13. At this stage, decisions rendered by this Court on this issue are required to be kept in view. In the case of Bipinchandra G. Dalal Vs. State of Gujarat (supra), this Court has observed in Paragraphs8 and 9 as under:
"8. Mr. Bukhari, the learned Assistant Government Pleader, invited my attention to the decision of this Court in Habib Nasir Khanji V/s. State , (1970) 11 GLR 307 and Bhagwanji Page 16 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT Bawanji V/s. State of Guj. (1971) 12 GLR 156 and contended that the length of reasonable time must depend on the fact and circumstances of each case and in the aforesaid decisions the exercise of revisional power after the lapse of a year or so was considered to be in order. He submitted that the basic idea is to see that the sword is not kept hanging on the party granted permission for an unreasonably long period as that would make it difficult for the party to make nonagricultural use of the land. It must be realised that both these decisions on which Mr. Bukhari places reliance are not concerning the grant of permission under Sec. 65 of the Code. The power under Sec. 211 of the Code can be exercised by the State Government and certain high ranking officers in respect of any inquiry or proceedings of any subordinate revenue officer. Such inquiry or proceedings may or may not relate to the question of grant of permission under Sec. 65 of the Code. While it is true that the length of reasonable time would depend on the facts and circumstances of each case, it must be realised that insofar as permission under Sec. 65 is concerned that provision itself indicates the length of reasonable time within which action must be taken under Sec. 211 of the Code. Where the order sought to be revised is other than the one made under Sec. 65 of the Code, the length of reasonable time may be governed by the facts and circumstances of that case but when an order passed under Sec. 65 of the Code is sought to be revised, the time factor set out in that provision itself gives a clear indication of what could be the reasonable time within which the jurisdiction should be exercised Therefore, exercise of power under Sec. 211 of the Code in regard to orders made under Sec. 65 of the Code stand on a different footing and as observed by the Supreme Court, the revisional jurisdiction must be exercised within a few months. In the present case the order of the Secretary (Appeals) does not indicate why the decision to exercise revisional powers was delayed by 11/2 years. Unlike in the batch of petitions, Special Page 17 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT Civil Application No 4530 of 1983 and allied matters disposed of today, no preliminary inquiry was made, at least that is nobody's case, before decision to exercise revisional powers was taken. There is no explanation whatsoever why revisional jurisdiction was not exercised soon after the orders granting permission under Sec. 65 of the Code were made on 6th Nov. 1982. In the absence of a satisfactory explanation, it is difficult to say that the revisional power was exercised promptly and expeditiously, i.e. within a reasonable time.
9. The Secretary (Appeals) has relied on two decisions of this Court, both rendered by S. H. Sheth, J. In the case of Kamalkhan Ajitkhan (supra), the Mamlatdar granted land to the petitioner on 3rd Jan. 1973 and the Assistant Collector issued notice under Sec. 211 of the Code on 21st Jan. 1975, that is, after a lapse of two years. Relying on the decision of the Supreme Court that the power must be exercised within a reasonable time, it was observed that reasonable time must depend on the facts and circumstances of each case. Taking note of the fact that the petitioner had not done anything on the Wada land and the land had remained as it was during the said period of two years, this Court held that it was permissible to exercise revisional power as the same was not likely to cause any prejudice to the petitioners. In the case of Gulam Yasinmiya (supra), the order made by the Assistant Collector on 7th Aug. 1967 was sought to be revised after a lapse of almost three years by notice dated 27th Oct. 1970.
Taking note of the decision of the Supreme Court as well as this Court in Habib Nasir's Case (supra), the learned Judge observed that since the period of reasonable time must depend on the facts and circumstances of each case, it would have been necessarily to seriously view the proposed action if the evidence had disclosed that after the land was granted to the petitioner, the petitioner had invested moneys Page 18 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT in the land, developed it or had done something to develop it. In the absence of such evidence, this Court held that notwithstanding the lapse of time, since the proposed action was not likely to cause prejudice to the petitioner, the same must be upheld. Both these decisions do not pertain to exercise of revisional powers relating to permission granted under Sec. 65 of the Code. As pointed out earlier, cases governed by Section 65 read with Sec. 211 stand on a different footing and in view of the observations made by the Supreme Court extracted earlier, the power must be exercised within a few months from the date of permission. Besides, in the present case the petitioners have averred that after the grant of permission, they have sold or entered into an agreement to sell the plot for the purpose of development and if the permission granted is belatedly cancelled, it would have a direct impact on the transaction entered into by the petitioners. Miss Shah was, therefore, right in contending that so far as the present two petitions are concerned, since the first respondent has not given any satisfactory explanation for the delay, this Court must hold that the power was not exercised within reasonable time. She submitted that in the present case it is not the contention of the first respondent that any preliminary inquiry was made to determine whether these were fit cases for exercise of revisional powers as in the batch of petitions, Special Civil Application No. 4530 of 1983 and allied matters disposed of today and, therefore, there is no explanation whatsoever why the power was not exercised promptly within a few months from 6th Nov. 1982. This is all the more so because in similar circumstances the Secretary (Appeals) had while dealing with land in Block No. 18 admeasuring 2723 sq. yards, withdrawn the show cause notice on the ground that the proposed action was delayed. I am inclined to agree with the submissions made by Miss Shah in this behalf."
Page 19 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT14. In the case of Champaklal Manubhai Sopariwala and Ors. Vs. State of Gujarat (supra), this Court has observed in Paragraph7 as under:
"7. Whether or not such action translated into the order at AnnexureC to each petition could be revised under Section 211 of the Code after a lapse of more than four years from its date. The answer is clear from the binding ruling of the Supreme Court in the case of Raghav Natha (supra) and the binding ruling of the division Bench of this Court in the case of Bhagwanji Patel (supra). In the aforesaid ruling in the case of Raghav Natha (supra), the Supreme Court has held that powers under Section 211 of the Code cannot be exercised beyond a reasonable period of three months with respect to the order under Section 65 thereof. It needs no telling that the aforesaid statutory provision empowers the concerned authority to grant what is popularly known as the N.A. permission. In its aforesaid Division Bench ruling in the case of Bhagwanji Patel (supra), this Court has held that the revisional powers under Section 211 of the Code cannot be exercised beyond a period of one year from the date of concerned action or order. Both the aforesaid ruling are binding to me."
15. In the case of Cold Cap Tyres Pvt. Ltd Vs. Additional Chief Secretary (supra), this Court has observed in Paragraph6 as under:
"6. It is, therefore, obvious that the respondent No.1 has exercised revisional powers under Section 211 of the Code much beyond reasonable time and in contravention of the ratio of the decision of the Supreme Court in Raghav Natha (supra), as also the other decisions which were pointed out and were Page 20 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT referred to in his order. There is no substance in the contention that the order of the respondent No.2 granting N.A. permission should be treated as void ab initio. Only an irregularity was alleged against the order by the revisional authority on the ground that the guidelines contained in the circular dated 253 1981 were not followed. This is not a case of total lack of jurisdiction on the part of the respondent No.2 nor can the order be said to be void ab initio, because, the provisions of Section 65 of the Code, admittedly empowered the respondent No.2 to grant such permission."
16. In the case of State of Gujarat Vs. Patel Raghav Natha (supra), this Court has observed as under:
"12. It seems to us that sec. 65 itself indicates the length of the reasonable time within which the Commissioner must act u/s. 211. u/s. 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Ss. 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on 12.10.1961, i.e., more than a year after the order, and it seems to us that this order was passed too late.
17. From the aforesaid decisions rendered by the Page 21 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT Honourable Supreme Court as well as this Court, it can be said that the suomotu powers are required to be exercised within reasonable time. In the present case, as observed hereinabove, the suomotu proceedings were initiated by respondent No.1 after a period of approximately threeandahalf years by issuing Showcause Notice. Thus, the suomotu proceedings were not initiated within reasonable period.
18. The learned Assistant Government Pleader has contended that respondent No.3 TDO has no jurisdiction to pass the order in view of the Government Resolutions referred hereinabove and, therefore, when the order passed by respondent No.3 is nullity, suomotu powers can be exercised at any point of time. For considering the aforesaid submission canvassed by the learned Assistant Government Pleader, relevant facts of the present case are required to be closely examined at this stage. Government Resolution dated 01.07.2008 provides for procedure which is required to be followed at the time of granting permission under Section 65 of the Code. As per the said Government Resolution, Taluka Panchayat was empowered to grant such permission if the population of the village is less than 5000 and the area of the land is admeasuring less than two acres. Therefore, the TDO was empowered to grant permission under Section 65 of the Code on certain terms and conditions. Schedule5 of the said Government Resolution provides for Page 22 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT certain guidelines, which are to be followed while granting such permission. Thereafter, on 08.04.2011, another Government Resolution has been issued by the Government of Gujarat and, thereby, procedure for grant of permission under Section 65 of the Code has been prescribed. As per the said Resolution, now the Taluka Panchayat is empowered to grant permission if the population of the village is less than 3000 and if the land is admeasuring less than one acre. It is further provided that NA permission will not be granted to one occupant of one survey number in one year, if there is a fragmentation for more than two occasions in a year.
19. At this stage, it is pertinent to note that the Deputy Collector passed an order dated 15.03.2013, by which, permission is granted to the petitioner and three other coowners of the land in question for partition of the said land. Copy of the said order is produced at Page43 of the compilation. It is also pertinent to note that the said order has attained finality.
20. However, on the basis of the order passed by the Deputy Collector, after partition, the present petitioner got a share of 4047 sq. meters of land in question and, therefore, the land for which the application was given by the petitioner was less than one acre. Thus, as per the Government Resolution dated 08.04.2011, respondent No.3 TDO is having jurisdiction to consider such application. It is, therefore, not correct on the part of the learned Page 23 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT Assistant Government Pleader to contend that the order passed by respondent No.3 TDO is nullity and TDO has no jurisdiction to pass such order.
21. It is wellsettled that even nonest order is also required to be challenged within reasonable time. In the present case, the order passed by the TDO cannot be said to be nonest or the TDO has no jurisdiction to pass such order. Hence, the impugned order passed by respondent No.1, while exercising suomotu powers after a period of more than three and half years, is required to be quashed and set aside on the ground of delay in initiating the suomotu proceedings.
22. It is contended by the learned Assistant Government Pleader that the TDO has not followed procedure prescribed in the Government Resolution dated 01.07.2008 and, therefore, the order passed by respondent No.3 TDO is nullity. However, this Court is of the view that the said submission is also misconceived. From the record, it appears that respondent No.3 TDO has obtained necessary permission and report from the concerned departments and even assuming that all the reports or opinion from the concerned departments are not obtained before granting permission under Section 65 of the Code as per the aforesaid resolution, even then it can be said that it is an irregularity committed by respondent No.3 TDO while not following all the instructions given in the said resolution but it Page 24 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT cannot be said that the order passed by respondent No.3 TDO is a nullity or the TDO has no jurisdiction to pass such an order. At this stage, it is pertinent to note that the learned Senior Advocate appearing for the petitioner has pointed out from Pages37, 40, 41, 42 and 47 of the compilation that necessary opinion was obtained from the concerned authority/department by TDO. It is also pertinent to note that as per subclause 15 of Schedule5 of Government Resolution dated 01.07.2008, provisions of the Fragmentation Act would not be applicable. Even as per the Government Resolution dated 08.04.2011, permission cannot be granted by the competent authority to one occupant of one survey number in one year, if there is a fragmentation for more than two occasions in a year. In the present case, there is no fragmentation of the land in question for more than one occasion in a year and, therefore also, submission canvassed by the learned Assistant Government Pleader cannot be accepted.
23. The decision upon which reliance placed by the learned Assistant Government Pleader in the case of Uma Small Scale Industrial Coop. Society Ltd. Vs. Collector, Surat & Ors (supra), would not be helpful to the respondents, as the facts of the present case are different. In the case of Mahendrakumar Pitambarbhai Doshi Vs. Addl. Secretary, Revenue Department (Appeal) & Ors. reported in 2013(2) GLR 1495, the concerned department was not authorised to Page 25 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT pass order and, therefore, the said order was treated to be nullity and this Court has observed that where the order is nonest, law laid down in Raghav Natha's case cannot be invoked. However, the facts of the present case are different as discussed hereinabove.
24. In view of the aforesaid discussion, this Court is of the view that when the suomotu proceedings were initiated after a delay of more than threeand ahalf years, the impugned order passed by the respondent SSRD is required to be quashed and set aside. The order passed by the TDO cannot be said to be nonest or of without jurisdiction and, therefore, suomotu powers were required to be exercised within reasonable time. Even otherwise, the respondent SSRD has not assigned any reason for quashing and setting aside the order passed by the TDO. It is only observed in the impugned order passed by the SSRD that looking to the record produced before him and looking to the Policy of the State Government, the TDO has committed irregularity and acted beyond his powers. No further details are mentioned in the impugned order.
25. Looking to the overall facts and circumstances of the present case as discussed hereinabove, all the petitions deserve to be allowed. Accordingly, the petitions are allowed. The orders impugned in the respective petitions are quashed and set aside. Rule is made absolute, to the aforesaid extent, in each Page 26 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019 C/SCA/9622/2018 CAV JUDGMENT petition. In view of the disposal of the main petition, Civil Application does not survive and is disposed of, accordingly. Direct Service is permitted.
(VIPUL M. PANCHOLI, J) piyush Page 27 of 27 Downloaded on : Sat Oct 26 02:28:19 IST 2019