Gujarat High Court
Dalsukhbhai Chaturbhai Prajapati vs State Of Gujarat on 28 September, 2020
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/8617/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8617 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
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 ?
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DALSUKHBHAI CHATURBHAI PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
MR PARTHIV B SHAH(2678) for the Petitioner(s) No. 1
MR DHAWAN JAYSWAL, AGP for the RespondentsNo. 1,2,3 4
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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 28/09/2020
ORAL JUDGMENT
[1] This petition under Article 226 of the Constitution India is filed by the petitioner with a prayer to quash and set aside the notice dated 06.06.2020 issued by the respondent No.3-Deputy Collector. The petition is also filed for seeking relief declaring that the N.A. permission in respect of the subject land is deemed to have been Page 1 of 13 Downloaded on : Fri Feb 26 01:50:41 IST 2021 C/SCA/8617/2020 JUDGMENT granted w.e.f. 05.07.2018.
[2] The petition pertains to land bearing survey No.56, block No.93 and survey No.63, block No.102 of village Datpura, Taluka:
Vaghodiya, District: Vadodara.
[3] Learned advocate Mr. Parthiv B. Shah appearing for the petitioner submits that the subject lands were originally owned by one Dhirajlal Dhanial Jaiswal whose name appeared in the revenue record since 1991 and Ajaykumar Ramnalal Jaiswal whose name appeared in revenue record in 1980. These original owners had sold the subject land to one Bhatt Hemang Bhanuprasad in the year 2006 and 2008 respectively and since then name of Hemang Bhanuprasad Bhatt was in the record of rights. The petitioner intended to purchase the aforesaid lands in accordance with law and therefore, entered into registered agreement to sale in the year 2016 registered vide Registration No.2861 of 2016 and thereafter, separate registered sale deeds pertaining to block No.93 and block No.102 came to be registered vide registration Nos.375 and 376 respectively.
[3.1] It is submitted that after the purchase of the aforesaid lands, the petitioner had applied for N.A. permission to the respondent No.2-Collector under Section 65 of the Gujarat Land Revenue Code.
Such application was in-warded on 05.04.2018. It is submitted that Page 2 of 13 Downloaded on : Fri Feb 26 01:50:41 IST 2021 C/SCA/8617/2020 JUDGMENT upon his application for grant of N.A. permission, the respondent No.4-Mamlatadar issued notice to the petitioner under Section 63 read with Section 84-C of the Tenancy Act and thereafter, Tenancy Case No.14 of 2018 came to be registered. In the proceedings before the Mamlatdar, the petitioner had voluntarily declared willingness to pay the premium which came to be determined at Rs.5,94,740/-, the amount which the petitioner had paid on 26.06.2018.
[3.2] It is submitted that the Tenancy Case No.14 of 2018 came to be disposed of on 16.07.2018 upon payment of premium. It is submitted that the petitioner had time and again requested the office of the Collector for grant of NA permission and particularly with regards to the automatic grant of N.A. after period of 90 days of the application. Lastly the petitioner had visited the office of the Collector in February-2020 and in response, instead of declaring the petitioner as N.A., the impugned show cause notice came to be issued.
[3.3] Learned advocate drew attention of this Court to Section 65 of the Gujarat Land Revenue Code and proviso to Section 65 contended that where the Collector fails to 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 and accordingly, as the applicant had in-warded the application for N.A. Page 3 of 13 Downloaded on : Fri Feb 26 01:50:41 IST 2021 C/SCA/8617/2020 JUDGMENT on 05.04.2018, the N.A is deemed to have been granted. Thereafter, it is not open for the respondent authorities to re-open the matter under Section 76A of the Tenancy Act. Learned advocate for the petitioner thereafter, submitted that the tenancy proceedings initiated under Tenancy Case No.14 of 2018 also stood concluded upon the acceptance of the petitioner to pay the premium and therefore, also no further action was required to be undertaken and no show-cause notice ought to have been issued. [3.4] Learned advocate lastly submitted that even if the show-cause notice under Section 76A is considered to have been issued in due course then also as provided under Section 76A, show-cause notice dated 06.6.2020 against the order of 16.07.2018 which is much beyond the period of one year and therefore, the proviso bars for calling for any record after expiry of one year from the date of order dated 16.07.2018 in Ganot Case No.14 of 2018.
[3.5] Learned advocate has relied upon the decision in the case of Thakorebhai Tribhovandas Rao v/s. The State of Gujarat and others, reported in 1995(1) GLH 758 in support of this contention that the Collector will have no revisional power to be exercised beyond period of one year. Learned advocate has relied upon the decision in the case of Nankabhai Bathabhai Ahir v/s. Bagulbhai Bavishibhai Patel in Special Civil Application No.3307 of 2010 in support of the same contention. He also relied Page 4 of 13 Downloaded on : Fri Feb 26 01:50:41 IST 2021 C/SCA/8617/2020 JUDGMENT upon the decision in the case of Prahaladbhai Kachrabhai Patel v/s. State of Gujarat in Special Civil Application No.22086 of 2006 dated 19.04.2018 in support of his contention regarding Section 65 and deeming fiction.
[4] As against this, learned Assistant Government Pleader has opposed the petition on the ground of maintainability as well as on merits. It is submitted that the petitioner is before this Court only against the show-cause notice and therefore, the petition is premature petition and all the contentions as raised by the petitioner before this Court are open to be raised before the authority. Moreover, if aggrieved by such decision in the show- cause notice, it is open for the aggrieved party to approach the higher forum as provided under the law despite this, the petitioner has straightway approached in present petition. [4.1] With regards to the contention of the grant of N.A. permission, it is submitted that the said application for N.A. permission by the petitioner was acknowledged on 12.04.2018 and by order dated 10.07.2018, such application came to be rejected and therefore, there is no question of deeming fiction as provided under Section 65 of the Act. Learned AGP submitted that the order dated 16.07.2018 was placed before the Deputy Collector, Vadodara for exercising delegated powers of the Collector. The said communication was received by the Deputy Collector on Page 5 of 13 Downloaded on : Fri Feb 26 01:50:41 IST 2021 C/SCA/8617/2020 JUDGMENT 18.07.2018 however inadvertently the date was mentioned as 16.07.2017. Learned AGP drew attention of this Court to the said communication at Annexure-R3. Therefore, the power exercised is within stipulated period of one year for calling upon records and proceedings.
[5] The Court has considered rival submissions of the parties and perused the documents placed on record. In present petition, two contentions are raised (1) that N.A. application be considered as deemed to have been granted w.e.f. 05.07.2018 in view of settled principles of law and 2) The impugned show cause notice dated 06.06.2020 is bad in law as the same was issued by the Deputy Collector, in the revision proceedings initiated u/a. 76A of the Tenancy Act after almost 23 months from the order passed by the Mamaltdar dated 16.07.2018 which has to be issued within the period of 1 year by relying upon the provisions of section 76A of the Tenancy Act] From the record, it appears that the land bearing Survey No.56, Block No. 93 admeasuring 1H-25G-30A and survey no. 63, Block no. 102 admesuring 1H-72G-7A situated at Village Datpura, Ta. Vaghodiya, Dist: Vadodara was initially in the revenue record. The name of one Mr. Ajaykumar Ramanlal Jaiswal was mutated in the year 1980 and the name of one Mr. Dhirajlal Dhanilal Jaiswal in the year 1991 and thereafter the said land was sold to Hemang Bhanuprasad Bhatt in the year 2006 and 2008. The name of Hemang Bhanuprasad Bhatt was mutated in the revenue Page 6 of 13 Downloaded on : Fri Feb 26 01:50:41 IST 2021 C/SCA/8617/2020 JUDGMENT record and thereafter as the petitioner had intended to purchase the said land, in the year 2016 the petitioner had entered into an agreement to sale which was registered in the office cc sub- registrar vide registration no. 2861 of 2016 and sale deed was executed in the year 2017 being registration nos. 375 of 2017 and 376 of 2017 for block nos. 93 and 102 respectively. The petitioner had applied for NA permission before the Collector Vadodara u/s. 65 of the Gujarat Land Revenue Code and the said application was inwarded in the office of the Collector, on 05.04.2018 and though 26 months have been passed, no decision was taken on the application seeking N.A. permission and therefore raise contention that the N.A. application deemed to have been granted by relying the provision of Section 65 of the Gujarat Land Revenue Code. The same is not correct and the deeming provision will not be applicable to the facts of the present case, because at the relevant point of time the powers to grant NA permission are with the District Development Officer, Vadodara which was later transfer with the Collector, Vadodara from 07.12.2018 and on 12.12.2018 the State Government through Revenue Department had issued instructions to the effect that all the N.A. related issue to be done through online medium and concerned applicant has to make application online. That in connection to the above stated submissions, the office of the respondent had inquired about the status of the application dated 05.04.2018 made by the petitioner for seeking N.A. from the office of the District Development Officer, Page 7 of 13 Downloaded on : Fri Feb 26 01:50:41 IST 2021 C/SCA/8617/2020 JUDGMENT Vadodara, whereby it was informed that the application of the petitioner dated 05.04.2018 for which acknowledgment was given on 12.04.2018 by the said authority through R.P.A.D. and the said application was rejected by the said authority on 10.07.2018 being letter No.L.N.D./SR/86/l7-18 and the same was served to the petitioner and therefore the same was decided within the stipulated time of three months from the date acknowledgment. [5.1] It appears from the record that after online procedure initiated by the State Government, the petitioner had even not made online application as required under the recent procedure for seeking N.A. [6] The Court has perused the communication at Annexure-R1, which is dated 12.04.2018 which is addressed to the petitioner which pertains to the subject land informing the petitioner that the application is under consideration. The Court has also perused the communication dated 10.07.2018, addressed to the petitioner wherein on five grounds, the application for N.A. has been rejected. It is pertinent to note that after such communication was addressed to the petitioner, the petitioner himself has addressed a communication dated 29.08.2018 under his signature with a prayer that the N.A. file may be kept pending and upon the revision being filed, he would request for reopening of such file. The petitioner once taken such a stand, it is not open for the petitioner now to contend that by operation of Section 65, the deeming fiction would Page 8 of 13 Downloaded on : Fri Feb 26 01:50:41 IST 2021 C/SCA/8617/2020 JUDGMENT set in and the subject land would automatically declare to be N.A. The petitioner apparently to his knowledge has not disclosed these aspects in the petition which are not only relevant but are directly pertaining to the relief prayed for in the petition. Such practice of petitioner not disclosing true and correct facts is required to be deprecated.
[7] The impugned show-cause notice is in exercise of powers under Section 76A which are powers of Collector. It provides for where no appeal has been filed within the period provided, the Collector may suo motu or on a reference made by the State Government may call for the record of any inquiry or proceedings of the Mamlatdar for the purpose of satisfying himself as to the legality or propriety of any order passed and as to the regularity of the proceedings of such Mamlatdar. The proviso reads that no such record shall be called for after the expiry of one year from the date of such order and no order of such Mamlatdar or Tribunal shall be modified annulled or reversed unless opportunity has been given to the interested parties to appear and be heard. The present show- cause notice is apparently in consonance with Section 76A of the Act including the proviso as the reading of the proviso would indicate that the record is not to be called for after the expiry of one year from the date of such order and orders of such Mamlatdar is to be modified annulled or reversed unless opportunity has been given to the interested parties. The petitioner being the interested Page 9 of 13 Downloaded on : Fri Feb 26 01:50:41 IST 2021 C/SCA/8617/2020 JUDGMENT party, the show-cause notice issued to the petitioner. The Court is not in position to read as is canvassed by the petitioner that in the facts of this case, the show-cause notice dated 06.06.2020 is barred more particularly in view of facts of the present case, wherein the communication with regards to taking up the Tenancy Case No.14 of 2018 is called upon to be taken under review under the communication dated 16.07.2017 (sic.) bearing reference No. Tenancy/Vashi/321/2018 produced at Annexure-R3. The date mentioned by mistake is 18.07.2018, which cannot be the date as the order which is reviewed itself is dated 16.07.2018. The Court therefore, accepts the explanation by the State Government and holds that the review was sought to be undertaken vide aforesaid communication dated 16.07.2017 (sic.).
[8] The reliance placed upon by the petitioner on Thakorebhai Tribhovandas Rao (supra), it is pertinent to observe that the case before this Court was with regards to jurisdiction in inquiry under Section 32-G which pertains to issuance of notice and determine the price of the land to be objected by the tenants, whereas in the present case, the orders sought to be reviewed was in connection with proceedings under Section 84C which pertains to declaration of disposal of land, jurisdiction or requisition as invalid. Considering the sphere of operation of Section 32-G and Section 84C, the judgment in case of Thakorebhai Tribhovandas Rao (supra) would not help the case of the petitioner. Moreover, the plain Page 10 of 13 Downloaded on : Fri Feb 26 01:50:41 IST 2021 C/SCA/8617/2020 JUDGMENT reading of the proviso itself provides that no to call for record after expiry of one year from the date of such order unless opportunity has been given to the interested parties to appear and be heard. In the opinion of the Court, the impugned notice is therefore, in consonance with Section 76A proviso.
[9] The reliance placed in case of Nankabhai Bathabhai Ahir (supra), the original proceedings were under Section 70B praying that the petitioner be declared as a tenant of disputed property and to be declared as entitled under the Tenancy Act. The petitioner claims to be a tenant of disputed land since 1967 for the loan taken by the original owners who are tribals. They were incapable of repaying, and therefore, the petitioner tenant paid the said amount and agreement to sell also was executed in the year 1977. It is his case that on 22.09.1997 when tenancy case was going on before respondent No.2 Mamlatdar and ALT, he was in possession of the property and agreement to sell also was executed in his favour. This has resulted in his favour. In suo-motu revision the said order dated 21.04.1998 came to be quashed on 08.05.2000. The petitioner is unable to point out the ratio on which he seeks to rely from the judgment to support his contention regarding exercise of revisional powers beyond the period of one year under Section 76A of the Tenancy Act. It is pertinent to reproduce certain paras of the judgment, where the Court has taken into consideration possibility of mischief in revenue office.
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C/SCA/8617/2020 JUDGMENT "38. It is matter of inquiry as to how the Mamlatdar and ALT could commit such a blunder of sending the papers to the Collector, Valsad and thereby allowing the time of revision to lapse.
39. It also deserves scrutiny at the end of higher officials. Moreover, the procedure narrated by the officer in additional affidavit also deserves rethinking. If after appeal period is over and no appeal is preferred, the papers are sent to the Collector by Mamlatdar and ALT. No intimation/report goes to the Collector of the disposal of matters by Mamlatdar and, therefore, mischief could easily be made for the one year period to be lapsed. Even mistake is possible with the workload in absence of a fullproff system."
[10] The Division Bench of this Court in the case of Mangalbhai Fatehsinh Chauhan v/s. Bai Naniba, reported in 1960 GLR 163 has held as under:-
"10. We put to ourselves the question whether the initial words of sec. 76 where no appeal has been filed within the period provided for it must relate not only to the period of sixty days prescribed by Section 79 but go further than that and embrace a case where an appeal is presented beyond the period of sixty days and the Collector is satisfied that the appellant had sufficient cause for not presenting the appeal within the prescribed period In our judgment it would be wresting the language of sec. 76A to give such extended and far reaching meaning to it. In language plain and simple it postulates the condition that the power of review is to be exercised only where no appeal has been filed within the period provided for it. These words indubitably indicate that it is competent to the Collector to move suo mow in any such matter immediately after the period of sixty days of the passing of the order sought to be reviewed has elapsed. They do not permit of any meaning of the nature urged before us by Mr. Shah. Therefore the contention relating to interpretation of sec. 76A must be determined in favour of the petitioner before us.
11. To turn to the other contention of the petitioner relating to the observance of the second condition postulated by Section 76A. It is urged that the record and proceeding in the case had in fact been called for by the Collector within one year of the Page 12 of 13 Downloaded on : Fri Feb 26 01:50:41 IST 2021 C/SCA/8617/2020 JUDGMENT date of the order and not later. In the earlier part of our judgment we have mentioned certain dates which have bearing on this aspect of the case. The date relied on by Mr. Amin is the 02.04.1959 whereas the date relied on by Mr. Shah is 22.05.1959. There is no dispute that the starting point of time is the 14.05.1958 when the Mahalkari made his order. The argument of Mr. Shah here is that the date to be regarded as crucial is 22.05.1959 the date on which the Collector forwarded the papers to the District Deputy Collector and that it is said was after the expiry of the prescribed period of one year. It is true that the Collector forwarded the papers to the District Deputy Collector after the expiry of one year from the date of the order of the Mahalkari. The argument however ignores the unmistakable language of the initial words of the proviso in sec. 75A. The proviso expressly speaks of the date on which the record is called for. It is that date which has not to be beyond the expiry of one year from the date of the order sought to be reviewed.(emphasis supplied). The record in the case before us as we have already pointed out must be regarded as having been sent for before 02.04.1959 since it was on that date that the Mamlatdar in fact sent the record to the Collector. It is this date which on this point of limitation in our judgment affords the terminus a quo of the whole matter. If this be the date to be regarded and we have no doubt on the point it must be held that the record had not been sent if for after the expiry of the prescribed period of the year."
[11] For the forgoing reasons, no case is made out by the petitioner for any interference in the impugned show-cause notice dated 06.06.2020 by the respondent No.3-Deputy Collector, Vadodara. The petition therefore, deserves to be and is hereby dismissed.
Sd/ (A.Y. KOGJE, J) SR DAVE/CAROLINE Page 13 of 13 Downloaded on : Fri Feb 26 01:50:41 IST 2021