Satishbhai Jivabhai Patel vs State Of Gujarat on 12 October, 2022

[Cites 18, Cited by 0]

Gujarat High Court

Satishbhai Jivabhai Patel vs State Of Gujarat on 12 October, 2022

Bench: Vaibhavi D. Nanavati

     C/SCA/274/2019                                 ORDER DATED: 12/10/2022




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 274 of 2019
===================================================
                   SATISHBHAI JIVABHAI PATEL
                              Versus
                        STATE OF GUJARAT
===================================================
Appearance:
DELETED for the Petitioner(s) No. 4
MR ANUJ K TRIVEDI(6251) for the Petitioner(s) No.
1,2,3,5,5.1,6,7,8
for the Respondent(s) No. 7
MR. HARDIK SONI, AGP for the Respondent(s) No. 1
NILAY H PATEL(7856) for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No.
2,3,4,6,7.1,7.2,7.3,7.4,8
===================================================

 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 12/10/2022

                               ORAL ORDER

1. Issue Rule returnable forthwith. Mr. Nilay H. Patel, learned counsel waives service of notice of Rule on behalf of the respondent no.5 and Mr. Hardik Soni, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent-State.

2. By way of the present petition, the petitioners herein have prayed for the following reliefs:

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C/SCA/274/2019 ORDER DATED: 12/10/2022 "(A) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other writ, order or direction, quashing and setting aside the impugned orders dated 18th February, 2018 passed by the respondent no.4, the impugned order dated 17th July, 2017, passed by the respondent no.2 and the impugned orders dated 20th July, 2015 passed by the respondent no.3;

(B) Pending admission, hearing and final disposal of the preset petition, Your Lordships may be pleased to stay the execution, operation and implementation of the aforesaid orders dated 18th February, 2018 passed by the respondent no.4, order dated 17th July, 2017, passed by the respondent no.2 and the orders dated 20th July, 2015 passed by the respondent no.3;

(D) Your Lordships may be pleased to grant any other and further relief/s as may be deemed just and proper in the interest of justice and fitness of things."

3. The brief facts leading to the filing of the present petition as stated by the petitioners herein as under:

3.1. The dispute is with regard to the land bearing Block Nos. 12, 16 & 180 situated in Village: Lambha, Tal.: Daskroi, Dist.: Ahmedabad (hereinafter referred to as 'the subject matter land'). The subject matter land is an agriculture land and the petitioners and private respondents herein are agriculturists. The disputed land / subject matter land was owned by Nathuabhai Patel. After demise of Nathabhai Patel, his sons, Shankarbhai Nathabhai Patel and Keshavlal Nathabhai Patel became the Page 2 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 owners of the subject matter land. The petitioner purchased the said land / disputed land by registered sale deed bearing No. 9080 on 12.06.1984 for the sale consideration of Rs.6,200/-. A sale deed was entered into and executed by and between Shankarbhai Nathabhai Patel and Keshavlal Nathabhai Patel (the sellers) and Himmatbhai Patel, Sanjaykumar Dashrathlal Patel and the petitioner nos. 1, 2 and 3 (the purchasers).

3.2. The petitioners and private respondents belong to the same family. Further the revenue entry No. 2677 came to be entered into in the revenue records and name of the petitioners i.e. petitioners came to be mutated on 21.10.1985. The said entry came to be certified after following due procedure on 13.01.1986.

It is the case of the petitioners that, one of the purchasers, viz. Himmatbhai Patel passed away on 19.02.1990. In view thereof, his legal heirs, viz. the petitioner nos. 4, 7, 8 and one Pradeepbhai Patel preferred an application to enter their names in the revenue records. The names of the legal heirs came to be mutated on 20.12.1990 and the said entry came to be certified on 24.01.1991.

3.3. It is the case of the petitioners that, after a period of 8 years, the Deputy Collector, Viramgam, initiated suo moto proceedings being Case No. 144/1992 under Section 9 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as 'the Act') with a view to cancel the revenue entry no. 2677 entered in the revenue Page 3 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 records on 21.10.1985 and certified on 13.01.1986, whereby, the subject lands were sold to the petitioners, on the ground that the said sale was in violation of Sections 7 and 9 of the Act.

3.4. It is further the case of the petitioners that, no notice came to be issued to the petitioners under Section 6(2) of the Act, prior to the initiation of the proceedings by the concerned authority. Though, the petitioners were the respondent no.2 in the aforesaid Case No. 144 of 1992, admittedly, no notice of the said proceedings was served upon the petitioners.

3.5. By order dated 25.03.1994, the Deputy Collector, Viramgam ordered that the revenue entry no. 2677 reflecting the sale of the subject matter land to the petitioners, was in violation of Section 7 of the Act, however, the same was pertaining qua to Block Nos. 12 and 16 of the subject matter land and not Block No. 1080. Consequently, by order dated 25.03.1994, the Deputy Collector, Viramgam cancelled the entry no. 2677 of the petitioners with regard to Block Nos. 12 and 16, and imposed penalty of Rs.250/- under Section 9 of the Act.

3.6. Thereafter, the petitioners and private respondents being family members filed joint application before the concerned authority to enter their joint names with regard to the subject matter land bearing Block Nos. 12 and 16. Pursuant to the said application, revenue entry No. 2981 came to be mutated in the revenue record on 29.10.1997, whereby, the names of petitioners Page 4 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 and private respondents were reflected, as the joint owners. A panchnama came to be drawn and was produced before the authorities, which reflected that the subject land was irrigated land. Considering the above, the respondent authorities held that the land in question was irrigated land, used for cultivation and hence, was defragmented. Therefore, revenue entry No. 3114 was entered int the revenue record on 15.11.2000, whereby, the subject land was classified as defragmented land.

3.7. The private respondents preferred an application for removal of their names from the revenue record pertaining to the subject matter land and record the names of the petitioners, as the same was sold to the petitioners. The said declarations were also made in writing by the respondents before the revenue authorities on 15.11.2000. Pursuant thereto, revenue entry No. 3115 was mutated in the revenue records, which was subsequently certified on 01.01.2001.

3.8. It is the case of the petitioners that, after a lapse of 13 years from the date of last revenue entry i.e. revenue entry No. 3115, the respondent no.5 herein preferred RTS Appeals bearing No. 182 of 2013, 183 of 2013 and 184 of 2013 before the Deputy Collector, Ahmedabad. The Deputy Collector, Ahmedabad passed an order dated 20.07.2015, whereby, cancelled the entry Nos. 2804, 2981, 3114 and 3115. Thereafter, the RTS Appeals under Section 108 of the Gujarat Land Revenue Code came to be preferred before the Collector by the petitioners Page 5 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 herein and the order of the Deputy Collector was upheld by the Collector, Ahmedabad vide impugned order dated 17.07.2017. Thereafter, the petitioners herein have preferred the revision applications before the Special Secretary Revenue Department, however, the respondent no.4 dismissed the revision applications preferred by the petitioners vide order dated 28.02.2018 and upheld the impugned orders passed by the respondent no.2 dated 17.07.2017.

3.9. Being aggrieved by the aforesaid orders dated 20.07.2015, 17.07.2017 and 28.02.2018 passed by the respondent nos.3, 2 and 4 receptively, cancelling the revenue entries Nos. 2804, 2981, 3114 and 3115, the petitioners herein approached this Court by preferring the present petition with the above- referred reliefs.

4.1. Mr. Anuj Trivedi, learned counsel appearing for the petitioners vehemently submitted that, petitioners and the private respondents are the family members. The petitioners purchased the subject matter land by registered sale deed bearing No. 9080 on 12.06.1984 and revenue entry no. 2677 came to be mutated in the revenue record on 21.10.1985, which came to be certified on 13.01.1986.

4.2. Mr. Anuj Trivedi, learned counsel appearing for the petitioners submitted that, though, the Deputy Collector initiated the suo-moto proceedings being Case No. 144 of 1992 under Page 6 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 Section 9 of the Act. That the said proceedings were conducted ex-parte. Though the petitioners were the respondents in the said proceedings, no notice of the said proceedings was issued to the petitioners herein, and the Deputy Collector passed an order dated 25.01.1994, whereby, ordered that the revenue entry no. 2677, reflecting the sale of the subject land to the petitioners, was in violation of Section 7 of the Act, however, the same was pertaining only to Block Nos. 12 and 16 of the subject land and not Block No. 180.

4.3. Mr. Anuj Trivedi, learned counsel appearing for the petitioners submitted that, the aforesaid proceedings could not have been initiated after a gross delay of 8 years, more particularly, when the revenue authorities were aware of the said land and the revenue entries to the said effect was mutated and certified by the authorities in favour of the petitioners, after following due process of law. Further, no notice under Section 6(2) of the Act was issued to the petitioners herein. It appears that, pursuant to the aforesaid order passed by the Deputy Collector, Viramgam dated 25.03.1994, the petitioners and the respondents jointly filed an application to defragment the subject land i.e. Block Nos. 12 and 16. Pursuant to the said application, a Panchnama came to be drawn. Relying on the said Panchnama, the entries once again came to be posted and name of the petitioners and private respondents jointly came to be mutated in the revenue records.

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C/SCA/274/2019 ORDER DATED: 12/10/2022 4.4. Mr. Anuj Trivedi, learned counsel appearing for the petitioners submitted that, subsequently, the private respondents also preferred an application before the respondent authorities for deleting their names from the revenue record pertaining to the subject matter land and the name of the petitioners came to be reflected in the said entry, as the same was sold to the petitioners. Pursuant to the same, a revenue entry no. 3115 was mutated in the revenue records, which was subsequently certified on 01.01.2001.

4.5. Mr. Anuj Trivedi, learned counsel appearing for the petitioners submitted that after a span of 13 years, the respondent authorities initiated the RTS proceedings against the present petitioners.

4.6. Mr. Anuj Trivedi, learned counsel appearing for the petitioners submitted that the private respondents once sold the lands to the petitioners herein, it was not open for the private respondents to challenge the same by filing RTS Appeals, as stated above. The aforesaid proceeding was taken out by the private respondents, only with a view to harass the present petitioners. Both the authorities i.e. Deputy Collector and Collector were held in favour of the private respondents.

4.7. Mr. Anuj Trivedi, learned counsel appearing for the petitioners submitted that pending the present petition, the Page 8 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 parties i.e. petitioners herein and private respondents have arrived at an amicable settlement.

5.1. Mr. Nilay H. Patel, learned counsel appearing for the respondent no.5 has placed on record the affidavit. The relevant paras of said affidavit is dated 13.02.2020 which read thus:

"4. I state that I am son of late Shri Shankerbhai Nathabhai Patel. On 12.06.1984 my father and the respondent No.8 executed a sale deed in favour of certain individuals and petitioner nos. 1, 2 and 3.

5. I state that my father, respondent No. 8 and the petitioner No.1 are brothers and therefore, petitioner no.1 is my uncle. The land, being block nos. 12, 16 and 180 located in Village Lambha belong to our family and all of us are undertaking agriculture activities.

6. In the year 1985, my father and his brother decided to give a part of the land to petitioner no.1 and therefore, the above-named sale deed dated 12.06.1984 came to be executed.

7. In furtherance of the above, on 16.11.2000 and 01.01.2001 the respondents and I had submitted an application to the revenue authorities to remove our name from the revenue record and include the name of the petitioners as the land was sold to them.

8. I state that the land being block Nos. 12, 16 and 180 located at Lambha, Ahmedabad, have been rightly sold to the petitioners on 12.06.1984 by registered sale deed and the petitioners are the owners of the said land and also are in possession of the same and are cultivating it.

9. In view of the above, the deponent herein states that as the land is sold to and therefore, owned by the petitioners the relevant revenue- mutation entry in favour of the petitioners may be made and /or restored."

5.2. The aforesaid affidavit filed by the respondent no.5 states that the land bearing Block Nos. 12, 16 and 180 located in Page 9 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 Village: Lambha was sold to the petitioners on 12.06.1984 by registered sale deed and the petitioners are the owners of the said land and they are in possession of the lands in question and are cultivating the lands in question.

5.3. Mr. Patel, learned counsel appearing for the respondent no.5 submitted that the respondents herein had sold the lands to the petitioners and that the revenue entry in favour of the petitioner be restored.

6. Mr. Hardik Soni, learned AGP appearing for the respondent- State submitted that in view of the settlement arrived at between the parties and the nature in dispute being private dispute, this Court may pass appropriate order in the interest of justice.

7. Heard Mr. Anuj K. Trivedi, learned counsel appearing for the petitioners, Mr. Nilay H. Patel, learned counsel appearing for the respondent no.5 and Mr. Hardik Soni, learned Assistant Government Pleader appearing for the respondent-State.

8. While issuing Notice on 17.01.2019, this Court passed the following order:

"I have heard Mr. Anuj K. Trivedi, learned advocate appearing for the petitioners.

I have perused Entry No.2677 mutated on 21.10.1985 and certified on 13.1.1986, Entry No.3114 mutated on 15.12.2000 and certified on 1.1.2001 by which proceedings initiated under the provisions of Fragmentation Act were dropped and Entry No.3115 was certified on 1.1.2001 by which private respondents Page 10 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 have themselves sold the land in question to the petitioners. The proceedings at the instance of the private respondents were initiated in the year 2013 challenging those entries including Entry No.3115 which was certified on 1.1.2001 by which private respondents have themselves sold the property to the petitioners. Hence, the matter requires consideration.

Notice returnable on 14.3.2019. Learned Assistant Government Pleader waives service of notice on behalf of respondent No.1 - State. Till then, the revenue authorities are directed not to alter the revenue entries with regard to the land in question which exist on today. Direct service is permitted."

9. POSITION OF LAW:

9.1. In the case of Valjibhai Jagjivanbhai v/s. State of Gujarat reported in 2005 (2) GLH 34, the relevant para reads thus:

"(14.) Now it is required to be seen whether the transfer or partition made contrary to the provision of the Act will fall in the first category where no declaration is necessary for setting aside it. So far Sec. 9 is concerned, with a view to find out whether transfer or partition is covered by Sec. 9(1) of the Act, certain factual aspects will have to be scanned or scrutinised. Though a transaction may prima facie appear to be against the provisions of the Act but then parties may have valid ground to show that it was not so. The parties to the transaction may plead that the entire block of the land was sold and no fragment was created or that the transferee of the land was an agriculturist owning contiguous survey number or recognized sub-division of a survey number. Such fact finding exercise will have to be done by the authority in a proceedings wherein show-cause notice will have to be given to the parties calling upon them to show cause why transaction in question should not be declared to be contrary to provisions of the Act and hence void under Section 9(1) of the Act. In the case of Govindsingh V/s. G. Subbarao reported in 1970 G.L.R. at page 897 the Division Bench, while holding that power conferred by Sec. 9 of the Act is not legislative power but adjudicative only, Page 11 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 has prescribed the procedure required to be followed by the authority named therein before taking action under Sec. 9(3) of the Act :

["21. RE. GROUND (H) : This ground is available only in Special Civil Application No. 97 of 1968 since in this case the show-cause notice issued by the Assistant Collector did not give any opportunity to the petitioner to show cause why he should not be summarily evicted and possession restored to respondents nos. 3 to 5. The opportunity to show cause given by the show-cause notice was limited only to two matters, namely, why the sale should not be declared void and why penalty to the extent of Rs.250/= should not be imposed. The argument of the petitioner was that since the impugned order of possession was made by the Assistant Collector without giving any opportunity to the petitioner of being heard in his defence, there was breach of audi alteram partem rule and the impugned order of possession was, therefore, null and void. Now on this argument the first question which arises for consideration is whether audi alteram partem rule has application when the Collector proposes to make an order of summary eviction under Sec. 9 sub-sec. (3). To determine this question we must turn to the provisions of Sec. 9. That Section declares in sub-sec. (1) that the transfer or partition of any land contrary to the provisions of the Act shall be void and then in sub-secs. (2) and (3) it proceeds to constitute the Collector an authority for imposition of fine and summary eviction. When the Collector proposes to impose fine on the owner of any land under Sec. 9 sub-sec. (2), he will have to adjudicate whether the transfer or partition is contrary to the provisions of the Act and if he so finds, he will then have to determine what fine should be imposed on the owner of the land. This process is clearly an adjudicatory process and there can be no doubt or dispute that in this process the Collector must follow the principles of natural justice and observe the audi alteram partem rule. That was admittedly done in the present case. Then the Collector would have to determine under Sec. 9 sub-sec. (3) whether the person in possession of the land should be summarily evicted. The Collector can make an order of summary eviction only if he finds that such person is unauthorizedly in occupation or wrongfully Page 12 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 in possession of the land. It is clear from the nature of this power that the Collector is under a duty to act judicially in determining whether an order of summary eviction should be made and the Collector must, therefore, before making an order of summary eviction, comply with the principles of natural justice and give an opportunity of being heard to the person who is sought to be summarily evicted. No such opportunity was admittedly given to the petitioner in the present case. The argument of the respondents was that on the facts of the case no such opportunity was necessary, for there were no other facts than those set out in the show-cause notice on which the order of summary eviction was founded and if the sale was void, the petitioner was indisputably a person unauthorizedly occupying or wrongfully in possession of the land. But in our view this is no answer to a breach of audi alteram partem rule. When there is a breach of audi alteram partem rule, the question of prejudice is irrelevant. As pointed out by Vakil J. and myself in a judgment delivered on 25th June, 1969 in Original Jurisdiction Appeals Nos. 1 and 2 of 1969 : [East India Co. V/s. Off. Liquidator Raj Ratna Mills, XI G.L.R. 447]. "The audi alteram partem rule is indeed so vital and fundamental as a basic concept of justice that where it is infringed, the Courts do not pause to inquire whether there has been any miscarriage of justice as a result of its breach. The breach of natural justice is itself miscarriage of justice which entitles the applicant to succeed." The impugned order made by he Assistant Collector in Special Civil Application No. 977 of 1968 must, therefore, be held to be null and void in so far as it directs summary eviction of the petitioner and restoration of possession of the land to the respondents Nos. 3 to 5." ] [emphasis supplied].

(15.) The aforesaid procedure clearly prescribes that before taking action under Sec. 9(2) and 9(3) the Collector will have to first declare the sale void and thereafter impose appropriate fine on the owner of the land and thereafter he will have to issue show-cause notice to person in unauthorized occupation or wrongful possession that why he should not be summarily evicted. Naturally, at both these stages the parties to the sale will have to be granted full opportunity of hearing. May be this Page 13 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 cannot be said to be a legislative or judicial proceedings and it may be adjudicatory process, but nonetheless the Collector will have to act judicially and find out whether the transaction is contrary to the provisions of the Act; if it is found to be so, the Collector will declare it void under Sec. 9(1) of the Act. In our opinion when the declaration is required to be made, the transaction of transfer or partition of land will not fall in the first category of void. As already discussed above, the inquiry and the proceedings which are necessary for such declaration are required to be initiated, if the period of limitation is prescribed within that period and when no such period is prescribed within reasonable time.

(17.) The aforesaid discussion would show that for taking the ultimate action of eviction, there is no other provision but to resort to sub-sec. (3) of Sec. 9. May be that there are two different routes available to the authority namely under Sec. 9 and under Sec. 35, after declaring the transaction contrary to the provisions of the Act, but without trading on either of the routes, the Collector cannot resort to taking action under Sec. 9 (2) and 9(3) of the Act. Procedure required to be adopted by the Collector is described in the foregoing paragraphs of this judgment. When any illegal transaction is made subject matter of litigation is initially found to be legal or valid by a lower authority for one reason or the other; the higher authority would not be allowed to exercise power of revision at a belated stage on the ground that it ought to have been exercised within reasonable time. But if such transaction is brought or it comes to the notice of the Collector, say after 20 years, he can set it aside. It is pertinent to note that by virtue of different provisions of the revenue laws including some of provisions of the Act already stated in this judgment the authorities have ample scope to know about the illegal transaction. It is not that for getting the information about it the Collector will have to depend on some outside agency. When such illegal transaction is sought to be challenged, say by the transferor, he will have to file suit for declaration which will be subject to law of limitation. However, when the Collector who is clothed with sufficient power for the purpose of safeguarding the object of the Act, sits quiet for years together and all of a sudden intends to initiate the proceedings, he can do it even after inordinate delay. It does not appeal to us at all. In the decision rendered by the Apex Court in the case of Situ Sahu V/s.

Jharkhand [supra] the suo motu powers to annul the transaction Page 14 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 were exercised by the Deputy Commissioner in pursuance of the provisions of Sec. 71-A of the Chhotanagpur Tenancy Act. The said powers were sought to be exercised after lapse of 40 years since the provisions of Sec. 71-A of this Act envisage that such powers could be exercised "at any time". Powers under Sec. 71- A of this Act conferred upon Deputy Collector are somewhat similar to powers conferred upon the Collector under Sec. 9 of the Act. It prescribes that if at any time it comes to the notice of Deputy Collector that transfer of land belonging to a raiyat who is member of the Scheduled Tribes has taken place in contravention of Sec. 46 or Sec. 48 or Sec. 240 or any other provisions of this Act or in fraudulent method, he can after giving reasonable opportunity to the transferee, who is proposed to be evicted, to show cause and after making necessary inquiry in the matter, evict the transferee from such land and restore its possession to transferor. The Apex Court in para. 11 of its judgment has held as under :-

["11. We are, therefore, of the view that the use of the words 'at any time' in Sec. 71 A is evidence of the legislative intent to give sufficient flexibility to the Deputy Commissioner to implement the socio-economic policy of the Act, viz. to prevent inroads upon the rights of the ignorant, illiterate and backward citizens. Thus, where the Deputy Commissioner chooses to exercise his power under Sec. 71A it would be futile to content that the period of limitation under Limitation Act has expired. The period of limitation under the Limitation Act is intended to bar suits brought in civil courts where the party himself chooses to exercise his right of seeking restoration of immovable property. But, where, for socio- economic reasons, the party may not even be aware of his own rights, the legislature has stepped in by making an officer of the State responsible for doing social justice by clothing him with sufficient power. However, even such power cannot be exercised after an unreasonable long time during which third party interests might have come into effect. Thus, the test is not whether the period of limitation prescribed in the Act of 1963 had expired, but whether the power under Sec. 71-A was sought to be exercised after unreasonable delay." ] When officer of the State is conferred upon such power, in the opinion of the Apex Court, the same has to be exercised within reasonable time. Here also view similar to one taken in the Page 15 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 case of Mohamad Kavi is taken by the Apex Court. [17.1 The aforesaid discussion shows that there is sufficient scope for the revenue authorities of the State to know about illegal transaction which can be termed void under Sec. 9 (1) of the Act, in spite of that, if such void transaction is allowed to exist for years together, it is difficult to hold that the competent authority, even then would be within its bounds to initiate proceedings to declare such transaction void and annul it. It is also difficult to envisage that when two routes are available for reaching the ultimate destination under Sec. 9(2) and (3) of the Act, on the route prescribed under Sec. 35, the authority named therein will not be permitted to travel and the shutters will be drawn at the point where reasonableness ends. Whereas the other route i.e. under Sec. 9 of the Act will remain open for all time to come. To lay down proposition of law, in relation to Sec. 9 of the Act, that the Collector can exercise power thereunder even after inordinate delay, irrespective of the fact that there is scope for him to know about illegality committed cannot only be dangerous because it can give ample opportunity to some crafty seller to exploit the situation to his advantage, as we will presently discuss, but it can also be against the principle that one cannot sleep over his right for unreasonable period. It has to be pursued vigilantly.] (23.) Looking to the aforesaid different situations, there is no doubt in our mind that 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. The ratio laid down by the Apex Court in the decisions cited by Mr. Patel clearly states that even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective and in existence 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-section (3) of Sec. 9 of the Act. Similar observations can also be made with regard to the land wherein no change is brought about, but number of years have passed after the transfer against the provisions of the Act has taken place. In our opinion 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 Page 16 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 benefit to the seller who was equally responsible for entering into such illegal transaction. Thus, in our view, 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. We, therefore, hold that even powers conferred upon the Collector under sub-secs. (2) and (3) of Sec. 9 are required to be exercised within a reasonable time."

9.2. In the case of Heirs and legal representatives of deceased Parbatsinh Amarsinh v/s. State of Gujarat reported in 2117 (0) AIJEL-HC 237888, the relevant para reads thus:

"6.12 In case of 'SARVAGNA NAVINCHANDRA GODIAWALA VS. STATE OF GUJARAT AND OTHERS' (Supra), the vendor had challenged the sale deed of the land after 17 years of transaction. The Court held that the authority erred in setting aside the sale after such lapse of time, more particularly, at the instance of the vendor, who himself was at fault. It further held that even a void order has to be challenged within reasonable time. It was the case, where an application was made by the seller to the Collector for taking out proceedings under the Fragmentation Act and summary eviction of the buyer. The Collector had set aside the sell on the ground that it was in breach of the Fragmentation Act and order of summary eviction was passed against the buyer. This was when challenged before the Addl. Secretary (Appeals), it also concluded that the transaction was void and the same could not have been challenged after so many years, and therefore, the challenge on the ground of delay was negated and the matter was remanded for availing appropriate opportunity to the parties. The relevant paragraphs read as under:

"16. On behalf of respondent No.3 therein, it was submitted as under :-

"8. On behalf of respondent No.3, Mr. A.J. Patel has submitted that the voluntary sale came to be executed by Page 17 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 the father of the appellants and the deceased has received full consideration and executed the sale deed and has enjoyed the amount for his benefit and the benefit of the family and for a period of 16 years no whisper is made by the deceased or the appellants herein who are legal heirs of the deceased regarding transaction for sale. He further submitted that both the authorities have found that the block is not divided and even if the block is divided the permission is granted and the show cause notice is withdrawn. He further submitted that when the deceased transferor himself is a party to the voluntary sale and for about 16/17 years he has not challenged the legality and validity of the sale and when he has received the full consideration, the sale cannot be declared void at his instance or at the instance of the appellants who are legal heirs of the transferor, that too when neither the deceased nor the appellants have chosen to file appropriate proceedings of filing suit for declaring the sale as void and therefore, in his submission this is a fit case of abuse of process of law and this court should not permit the party to invoke the extraordinary equitable jurisdiction under Article 226 of the Constitution who themselves are admitting that they have committed wrong and have pocketed the undue benefits pursuant to transaction of sale which is under challenge."

It is also pertinent to extract paragraphs 16 and 17 of the aforesaid judgment in the Letters Patent Appeal :-

"16. Mr. A.J. Patel has drawn our attention to the judgment of the Division Bench (Coram : Mr. K.G. Balakrishnan, CJ & Mr. Justice J.N. Bhatt) dated 2.9.1999 in Letters Patent Appeal No.1153/98 in Special Civil Application No.6265/98 in the case of legal heirs of Mithabhai Mavjibhai v. State of Gujarat. Before the Division Bench the aforesaid matter was under the present Act itself and the Division Bench speaking through K.G. Balakrishnan, CJ observed as under:-

"We have heard the appellants' counsel. The present appeal is filed by the legal heirs of the original transferor. The counsel contended that the sale deed executed contrary to the provisions contained in the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 is a void transaction and therefore, no rights will flow from Page 18 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 such a transaction and the Collector was justified in setting aside the same even after a period of 21 years. It is important to note that the present challenge is made by the heirs of the original transferor. The original transferor accepted consideration and must have made the transferees believe that the transaction was in accordance with law. Therefore, the present appellants who are the legal heirs of the original transferors cannot be heard to say that they are entitled to the benefit of such a transaction which was opposed to law."

17. We are of the view that the aforesaid judgment of the Division Bench of this court is squarely applicable to the facts of the present case."

Ultimately, the appeal was dismissed by imposing costs of Rs.5,000/-.

17. The well-known maxim "In Pari Delicto Potior Est Conditio Possidentis" {in a case of equal or mutual fault between two parties, the condition of the party in possession (or defending) is the better one, and where the fault is mutual, the law will leave the case as it finds it), in my view, is applicable to the facts of the present case.

18. Considering the aforesaid aspects, in my view, initiation of proceedings, after such a long time, cannot be permitted and the Collector has committed an error of law in setting aside the transaction on the basis of the application made by respondent No.3, who, after having received the full consideration, thought it fit to challenge the said transaction after 17 years. In my view, a void order is also required to be challenged, as, it is submitted by Mr. A.J. Patel that the petitioners have also become owners by way of adverse possession. It is also not in dispute that even the Revenue Authorities were aware about the said transaction in view of the entry which was posted in 1981, but, the authorities had not thought it fit to take any proceedings for about 17 years.

19. Under these circumstances, in my view, proceedings are not required to be conducted at the instance of the respondent No.3. Even otherwise, the land in question is situated in T.P. Scheme, which is introduced and the same is now in residential zone. In that view of the matter, even rigour of Act, to an extent, is watered down. This being in residential zone in the Town Planning Scheme, Page 19 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 the land can be converted into N.A. Use.

6.13 In 'RINKI SHASHIKANT GANDHI VS. MAMLATDAR, VADODARA TALUKA AND OTHERS' (Supra), where the Court held that the Collector, under sub-Rule 108(6) of the Gujarat Land Revenue Code is not vested with the powers to direct forfeiture of the land to the State Government, since, no notice was issued under the Fragmentation Act. In that case, the proceedings had been initiated by the vendor after 4 years from the date of registration of the sale deed, which was held to be unreasonable by the Court.

6.14 On exclusively examining the law on the subject, the Court held that the person aggrieved by a sell transaction could not be the seller, who was a willing party to the sale deed and he cannot be permitted to take advantage of his own wrong. The Court, further, held that he had no locus standi to initiate the proceedings after unreasonable time, after having done the said transaction. The court held and observed as under:

"20. Considering the above legal and factual aspects of the matter, this Court has no hesitation in concluding that respondent No.4 is not a 'person aggrieved' by the sale transaction. The said respondent is a willing party to the Sale Deed and cannot be permitted to take advantage of his own wrong. He, therefore, had no locus standi to file an appeal after an unreasonable period of time, against the mutation entry evidencing the sale transaction.

21. Having considered the above aspects of the matter, the question whether the Collector could have cancelled the entry of sale and directed forfeiture of the land to the State Government, for violation of the provisions of the Fragmentation Act, would now arise for consideration.

22. The nature of the power to be exercised by the Collector under RTS proceedings is clear from sub-rule (6) of Rule 108 reproduced hereinabove. As already held by this Court, the said power does not extend to directing forfeiture of the land in question. A more important aspect of the matter is: under which proceedings is the Collector empowered to exercise the power conferred by Rule 108(6)? Under this sub-rule the Collector is exercising power under RTS proceedings regarding disputed mutation entries and certainly not under the provisions of the Page 20 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 Fragmentation Act. The impugned order of the Collector very clearly reveals that he has come to the conclusion that the sale transaction between the petitioner and respondent No.4 is hit by the provisions of the Fragmentation Act, and on this ground has directed forfeiture of the land to the State Government.

23. The Fragmentation Act is a self-contained Code that lays down a detailed procedure to be followed by the competent authority in the event that its provisions are found to be violated. It also envisages giving of notice to the person concerned. The circumstances under which the fragment of land shall vest in the State Government is also laid down. It is significant to note in the present case, that no proceedings, whatsoever, under the Fragmentation Act have been initiated against the petitioner. The proceedings initiated by respondent No.4 are RTS proceedings, under the Gujarat Land Revenue Rules, 1972. In exercise of power under sub-rule (6) of Rule 108 in RTS proceedings, the Collector cannot exercise power under the Fragmentation Act. Being a quasi judicial authority, the scope of exercise of power by the Collector is confined to the extent permitted by sub-Rule (6) of Rule 108. He is not empowered to transgress the limits of the power vested in him under RTS proceedings, as the power to be exercised by him is a statutory power. It may be possible that the Collector was under the mistaken notion that the power he exercises is inherent in his position or designation, as Collector. If it is so, such a notion is an absolutely erroneous one. The Collector cannot, by virtue of his position or designation, exercise power under another enactment when he is dealing with a matter under a different enactment. The position of law in this regard is no longer res integra.

24. In Evergreen Apartment Cooperative Housing Society v. Special Secretary, Revenue Department, Gujarat State (Supra), this Court has held:

"12 **** **** ***** So the entire inquiry and revisional power has to proceed under the Bombay Land Revenue Rules and not under any enactments like the Bombay Tenancy and Agricultural Lands Act, Urban Land (Ceiling and Regulation) Act or Bombay Prevention of Fragmentation and Consolidation of Holdings Act. It is Page 21 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by competent authorities under special enactments. Independently the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transaction recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Thus on this second ground also the orders of the Collector and the Additional Chief Secretary appear to be beyond their jurisdiction. The Additional Chief Secretary has held that the sale by auction was not consistent with the provisions of Section 27 of the Urban Land (Ceiling and Regulation) Act. Section 27 relates to prohibition of transfer of any urban land with a building thereon. Apart from legal position that Section 27 has been struck down as ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in the present case. Thus, the order of the revisional authority has proceeded on a misconception of relevant legal provisions also."

(emphasis supplied)

25. The culmination of the above discussion, in light of the judicial pronouncements and reasons stated hereinabove, leads this court to the following conclusions:

1. The proceedings initiated by the vendor, respondent No.4, after four years of execution of the sale transaction and five years of the registration thereof, suffer from delay, having been instituted after an unreasonably long period of time. As such, the Collector could not have acted Page 22 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 upon those proceedings by passing the impugned order.

2. Respondent No.4, being the vendor of the land in question has no locus standi to challenge the entry of sale, in respect of a transaction to which he was a willing party, after pocketing the sale consideration. Under these circumstances, respondent No.4 is not an aggrieved person and cannot be permitted to take undue advantage of his own wrong.

3.The Collector, under sub-rule (6) of Rule 108 is not vested with power to direct forfeiture of the land to the State Government. The direction in the impugned order, to this effect, is beyond the jurisdiction vested in the Collector under Rule 108(6) in R.T.S. Proceedings.

4. The Collector, in exercise of power under Rule 108(6) in RTS proceedings cannot exercise power under the Fragmentation Act, merely by virtue of his position or designation or the fact that he may be acting in different capacities under different enactments. Being a quasi judicial authority, the Collector is bound to exercise power within the limits prescribed by the particular enactment under which he is called upon to adjudicate, and cannot transgress the limits of such statutory power, in a manner that overlaps a different enactment. By passing the impugned order, the Collector has transgressed the scope and ambit of the power conferred by sub-rule (6) of Rule 108 of the Gujarat Land Revenue Rules, 1972, and has erroneously exercised power under the Fragmentation Act, which is not permissible. No proceedings have been initiated against the petitioner under the Fragmentation Act and no notice has been issued to her under this enactment.

By holding the sale transaction to be violative of the provisions of the Fragmentation Act and directing forfeiture of the land to the State Government, the petitioner has been seriously prejudiced, as it virtually amounts to setting aside the Sale Deed in RTS proceedings."

6.15 Thus, it is quite clear that when the proceedings are initiated under the Gujarat Land Revenue Code in exercise of the powers under sub-Rule (6) of Rule 8 in RTS proceedings, the Collector cannot exercise the powers under the Fragmentation Act. Drawing from the decision of this Court in 'EVERGREEN APARTMENT CO-OPERATIVE HOUSING SOCIETY V. SPECIAL SECRETARY, REVENUE Page 23 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 DEPARTMENT, GUJARAT STATE', 1991(1) GLR 113, the Court held that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. The authorities have to follow the procedure prescribed under the Fragmentation Act. As can be noticed from the order of the Secretary (Appeal), relying on the decision in 'EVERGREEN APARTMENT CO-OPERATIVE HOUSING SOCIETY V. SPECIAL SECRETARY, REVENUE DEPARTMENT, GUJARAT STATE' (Supra), it had directed the concerned authority to inquire into the provisions of the Fragmentation Act on following due procedure. In both the above referred authorities, even the time of four years for initiating any action for breach of the Fragmentation Act has been considered to be bad in law, whereas, in this case, the petitioners, who are the heirs of the original seller and who have enjoyed and taken benefits of the sale consideration, are desirous of taking advantage of their own wrong after nearly 20 years and made an application to the authority concerned for not granting permission for division of the Block, which, in the opinion of this Court, cannot be permitted."

9.3. In the case of State of Gujarat v/s. Patil Raghav Natha reported in (1969) 2 SCC 187, the relevant para reads thus:

"(11.) The question arises whether the Commissioner can revise an order made u/s. 65 at any time. It is true that there is no period of limitation prescribed u/s. 211, but it seems to us plan that this power must be exercised in reasonable time and the length of the reasonable time must be determined of the facts of the case and the nature of the order which is being revised. (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 Page 24 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 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. (13.) We are also of the opinion that the order of the Commissioner should be quashed on the ground that he did not give any reasons for his conclusions. We have already extracted the passage above which shows that after reciting the various contentions he baldly stated his conclusions without disclosing his reasons. In a matter of this kind the Commissioner should indicate his reasons, however briefly, so that an aggrieved party may carry the matter further if so advised.

(14.) We are also of the opinion that the Commissioner should not have gone into the question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent court and not to decide the question of title himself against the occupant."

9.4. In the case of Evergreen Apartment Cooperative Housing Society Limited v/s. Special Secretary (Appeals), Revenue Department reported in 1991 (1) GLR 113, the relevant para reads thus:

"(12.) There is much substance in the second submission of Mr. Hawa also. Ordinarily when a transfer of property takes place Page 25 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 by a registered account, an entry is effected in the revenue record and it is certified by the Mamlatdar after making necessary injuries. If there is any dispute regarding mutation, the dispute has to be entered in the register of the disputed cases and then such disputes are to be disposed of by the Mamlatdar. Under sub-rule (5) of Rule 108 of the Rules, the aggrieved party can prefer an appeal within 60 days from the date, of the service of the order. The State Government has power to call for and examine the record of any enquiry or the proceedings of any subordinate revenue officer and to review the same under sub-rule (6) of the rules. It is to be noted in the present case that no appeal had been presented within 60 days from the date of Mamlatdar's order certifying the initial entry. The Assistant Collector, Surat took the said entry in suo motu revision, even though he had no such power under the provisions of Rule 108. It, therefore, appears that the Additional Chief Secretary, Revenue Department remanded the proceeding to the Collector for treating the same as an appeal. This was done after a period of 4 years after the certification of the entry. It was only the State Government which had the power to call for a record of inquiry or proceeding under Sub-rule (6) of Rule 108. Even the State Government was empowered to satisfy itself "as to the regularity of such proceedings and as to the legality or propriety of any decision or order passed in such proceedings". So the entire inquiry and re-visional power has to proceed under the Bombay Land Revenue Rules and not under any enactments like the Bombay Tenancy and Agricultural Lands Act, Urban Land (Ceiling and Regulations) Act or Bombay Prevention of Fragmentation and Consolidation of Holdings act. It is quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by competent authorities under special enactments. Independently the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transaction recorded in the entry are against the pro visions of a particular enactment. Whether the transaction is valid or not has to be Page 26 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Thus on this second ground also the orders of the Collector and the Additional Chief Secretary appear to be beyond their jurisdiction. The Additional Chief Secretary has held that the sale by auction was not consistent with the provisions of Sec. 27 of the Urban Land (Ceiling and Regulation) Act. Sec. 27 relates to prohibition of transfer of any urban land with a building thereon. Apart from legal position that Sec. 27 has been struck down as ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in the present case. Thus, the order of the revisional authority has proceeded on a misconception of relevant legal provisions also."

9.5. In the case of Chandulal H. Ghodasara v/s. State of Gujarat reported in 1997 (2) GLR 1451, the relevant para reads thus:

"(17.) As an alternative ground of assailing the impugned notice, learned Senior Counsel Mr. Patel for the petitioner, has submitted that even assuming that the respondent-Collector has power to issue impugned notice under Rule 108, it shall be subject to some limitations as per the power of revision under Sec. 211 of the Bombay Land Revenue Code (hereinafter referred to as 'the Code' for short). Sec. 211 of the Code empowers Government and certain revenue officers to call for and examine the record of any inquiry or the proceedings of any subordinate revenue office in exercise of suo motu revisional powers. Since the law does not provide for period of limitation, the same has to be exercised within reasonable period. The question of reasonable cause to be examined by the Supreme Court in the case of State of Guj. V/s. Raghav Nat ha, X, GLR 992. As per this decision, reasonable period would be of three months for exercise of powers under [Supreme Court has laid a word of caution that length of reasonable time must be determined on the facts of individual case and nature of impugned order. Relying upon this ratio, this Court in the case of Janardan D. Patel V/s. State of Gujarat, 1997 (1) GLR 50, has held that reasonable period would be of one year Page 27 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 for exercise of revisional powers under Sec. 211 of the Code. The question of reasonable period within which suo motu powers invoking revisional jurisdiction of powers are to be exercised was also subject-matter of the decision in the case of Evergreen Apartment Co.-Op. Housing Society Ltd. V/s. Special Secretary (Appeals), Revenue Department, 1991 (1) GLH 155 and the Court held that such powers exercised after unreasonable delay are illegal, arbitrary and bad in the eyes of law. In this case, admittedly, the preliminary scheme came into force on 5-10-1989 and was sanctioned on 28-6-1990. Thus, on coming into force of the preliminary scheme, rights of individual owner of the lands covered under the scheme had already been determined. The rights so conferred by scheme and vested in petitioner have now been challenged by respondent No. 2 by the impugned notice dated 14-8-1995, that is, after a period of six years. Thus, one can safely hold that the respondent No. 2 Collector has exercised suo motu revisional powers after unreasonable delay as a result of which, on the face of it, such powers would be arbitrary, illegal and bad in law and requires to be quashed.

(19.) Mr. Patel, learned Senior Counsel, has also argued that by issuing impugned notice under Rule 108 (6) of the Rules the respondent No. 2 intends to divest the petitioner of legal title and possession qua the plot which has been statutorily conferred upon him. The scope of Rule 108 of the Rules is to deal with entries made in the record of rights and dispute regarding legality of such entries. As held by the Supreme Court in the case of Sankalchand Jaychandbhai Patel V/s. Vithalbhai Jaychandbhai Patel, (1996) 6 SCC 433, mutation entries do not create any title to the property since such entries are only to enable the state to collect revenues from the persons in possession and enjoyment of the property.

[The right, title and interest as to the property should be established independent of the entries. Thus, it is clear that the entries -in the revenue records are for the fiscal purpose only and while exercising powers under Sec. 108, the Collector has no power to divest the petitioner of his legal title vested by statute, i.e. Town Planning Scheme. It is settled law that one cannot be divested of his legal title merely by virtue of deciding mutation entries. As held by the Supreme Court in the case of State of M. P. V/s. Smt. Shiv Kunwarbai, AIR 1971 SC 1477 there must be some positive evidence to deprive a person of his legal Page 28 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 inheritance or title. It must also be shown by irreproachable evidence that the person in possession ceased to have any [process of law the property vested in the person seeking to eject the former lawful possessor. Similarly, if a person has been legally invested with the possession, the revenue authorities in exercise of suo motu revisional powers under Sec. 211 of the Code cannot decide the disputed question of title to any property. ] [Mutation proceedings cannot be converted into proceedings for deciding question of title since question of title has to be decided by a competent Court of civil jurisdiction. If revenue authority intends to decide question of title in revenue proceedings, in my view, would be usurping jurisdiction of Civil Court as held by this Court in the case of Ratilal Chunilal Solanki V/s. Shantilal Chunilal Solanki, 1996 (1) G.L.H 816.] (20.) In the case in hands, the controversy centres round the ownership of final plots and by impugned notice the Collector intends to divest the petitioner of possession and legal title by taking recourse to impugned revenue proceedings. Such proceedings are meant for deciding disputed entries only. Hence, in my view, while doing so, the revenue authorities would be usurping the jurisdiction of Civil Court, 1 am fortified by a view taken by the Supreme Court in the Raghav Natha's case (supra) which says that question of title cannot be gone into by revenue authorities while initiating proceedings qua mutation entry. Bombay High Court also in the case of Suleman Hashan Memon V/s. Kashirambhau Patil, LX BLR 1119, has held that the Collector has no power to decide question of title and order summary eviction while exercising revenue jurisdiction."

9.6. In the case of Raliyatben Popatbhai Thummar v/s. State of Gujarat reported in 2022 (0) AIJEL-HC 244374, the relevant para reads thus:

"12. Issue is no longer res-integra. 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. In the judgment of the Apex Court in the case Page 29 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 of Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim reported in (1997) 6 SCC 71, the principle has been reiterated. The Apex Court, while referring to the judgment in the case of State of Gujarat vs. Patil Raghav Natha and in the case of Ram Chand vs. Union of India, pointed out 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. Paragraph 2 reads thus:-

2. Although Mr. Bhasme, learned counsel appearing for the appellant took a stand that under Section 63 of the Act aforesaid, there should not be any discrimination amongst the agriculturists with reference to the State to which such agriculturist belongs.

But according to him even without going into that question the impugned order can be set aside on the ground that suo motu power has not been exercised within a reasonable time. Section 84-C of the Act does not prescribe any time for initiation of the proceeding. But in view of the settled position by several judgments of this Court 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 transfer took place as early as in the year 1972 and suo motu enquiry was started by the Mamlatdar in September 1973. If sale deeds are declared to be invalid the appellant is likely to suffer irreparable injury, because he has made investments after the aforesaid purchase. In this connection, on behalf of the appellant reliance was placed on a judgment of Justice S.B. Majmudar (as he then was in the High Court of Gujarat) in State of Gujarat v. Jethmal Bhagwandas Shah disposed of on 1- 3-1990, where in connection with Section 84-C itself it was said that the power under the aforesaid section should be exercised within a reasonable time. This Court in connection with other statutory provisions, in the case of State of Gujarat v. Patil Raghav Natha and in the case of Ram Chand v. Union of India has impressed 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. We are satisfied that in the facts and circumstances of the present case, the suo motu power under Section 84-C of the Act was not exercised by the Mamlatdar within a reasonable time. Accordingly, the appeal is allowed. The impugned orders are set aside. No costs.

13. Perceptibly, the learned Secretary did not accept the contention of the petitioner about action having been taken Page 30 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 beyond the reasonable period. The learned Secretary placed reliance on the judgment of Saburbhai Hemabhai Chauhan (supra). As has been rightly pointed out by Mr.P.J. Kanabar, learned advocate for the petitioner that the said judgment has no application to the facts of the present case. In the said case, the petitioner had purchased the land through the registered sale deed, claiming to be an Adivasi. The proceedings were initiated after a period of 15 years which culminated into forfeiture of the land in the State Government. Since the petitioner therein could not succeed before the revenue authorities, filed a writ petition before this Court challenging the orders of the revenue authorities. Contention was raised that initiation of belated action, that too, after 15 years, was not permissible. Clearly, the sale deed in the said case was executed in breach of the provisions of the Act and therefore, this Court held and observed that when the initial transaction itself is void ab initio, limitation would not apply. So far as the present case is concerned, it is not even the case of the state Government that the land is of a restricted nature. It is nobody's case that the transaction was nonest or void ab initio. The transaction was executed by the respondent nos.6 to 8 in favour of the respondent no.4, an agriculturist and respondent no.5, the son. Entries whereof, were posted in the revenue record, followed by certification by the revenue authorities concerned. It is not that the authorities were not aware about execution of the sale deed and subsequent posting of the entries in the revenue record. If at all, the authorities were of the opinion that the transaction is not in conformity with the provisions of the Act of 1956, it should have promptly taken the steps."

10. In view of the aforesaid position of law as referred above and the facts of the present case, the subject land having been sold by the private respondents to the petitioners by way of a registered sale deed in the year 1984 has attained finality. The ownership of the petitioners of the subject matter land is undisputed. More particularly, in view of the fact that the authorities did not consider the registered sale deed, consent Page 31 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 accorded by the respondent no.4 under Section 135-D Notice, declaration and application for removal of name of the private respondents, as referred to above and the impugned orders in view of this Court are also clearly barred by delay and latches. It is also an undisputed fact that the petitioners were and are in possession of the subject land for almost 13 years and subsequently, the petitioners became the owner of the subject land by way of adverse possession, which culminated into a sale deed bearing no. 9080 dated 12.06.1984. Considering the aforesaid aspect of the matter, clearly the proceedings initiated by the respondent no.4 can be said to be not sustainable, in view of the provisions of the Act.

11. In view of this Court, the proceedings initiated at the instance of the respondent no.4 under Rule-108 initiated after 23, 16 and 13 years from the date of mutation of entry, which is beyond the reasonable period. The petitioners have been owners of the subject land by way of a registered sale deed bearing no. 9080 dated 12.06.1984 and the same has not been disturbed or challenged except for challenge qua the entries. Further, by entry no. 3114, the procedure for defragmanting of the land was undertaken. The petitioners have been in possession of the subject matter land since 1984 and the said land is used for agriculture, cultivation, irrigation and hence, the object of fragmentation is also achieved. The petitioners are also paying the land revenue regularly. The private respondents themselves Page 32 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022 C/SCA/274/2019 ORDER DATED: 12/10/2022 entered into a registered sale deed with the petitioners herein accorded consent under Section 135-D Notice and also the application for removal of the names of the private respondents were also accepted by the concerned authorities. Lastly, the parties have also arrived at a settlement, an affidavit is also duly produced which is referred to above. Further, there is compromise / settlement arrived at between the parties, and therefore, on that ground also, the dispute being a private nature between the parties and with the consensus among the parties as well as the learned AGP, the orders passed by the respondent authorities are required to be quashed and set aside, by exercising the powers under Article 226 of the Constitution of India. Accordingly, the impugned orders dated 18 th February, 2018 passed by the respondent no.4, the impugned order dated 17th July, 2017, passed by the respondent no.2 and the impugned orders dated 20th July, 2015 passed by the respondent no.3 are hereby quashed and set aside.

The petition stands allowed, to the aforesaid extent. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 33 of 33 Downloaded on : Sun Dec 25 03:52:56 IST 2022

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