Vijayrajsinhji Virbhadrasinhjigohil ... vs State Of Gujarat & 2 on 16 October, 2014

[Cites 14, Cited by 0]

Gujarat High Court

Vijayrajsinhji Virbhadrasinhjigohil ... vs State Of Gujarat & 2 on 16 October, 2014

1. The present petition is filed by the petitioners under Articles 14 , 19(1)(e) & (g), 300A as well as 226 and 227 of the Constitution of India and also under the Bombay Land Revenue Code, 1879 read with Gujarat Land Revenue Rules, 1973 and also under the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Town Planning Act") for the prayer inter alia that appropriate writ, order or direction may be issued quashing and setting aside the impugned orders at Annexure-N, Annexure-O and Annexure-J and to restore the order passed by the Collector, Bhavnagar at Annexure-D dated 8.12.1971, on the grounds stated in the petition.

2. The facts of the case briefly summarized are as follows.

3. The land bearing Survey No.267, admeasuring 19 Acres 3 Gunthas i.e. 92323 sq. yards of village Vadva was owned and possessed by the petitioners. The predecessor-in-title of the petitioners applied to the Deputy Collector, Bhavnagar to get NA permission which was granted by order dated 27.12.1960. As per the relevant provisions of law regarding common plot the predecessor-in-title (ancestor of the petitioners) as erstwhile ruler was required to provide the common plot of 5% of the total area for the purpose of the development. The plots were made including the common plot and it was conveyed by separate conveyance deeds / registered sale deeds executed Page 2 of 18 C/SCA/14843/2005 JUDGMENT on different dates in favour of the individuals. Those individuals then formed the society - Respondent No.3 herein. It is the case of the petitioners that according to the relevant provisions of the Town Planning Act, the are of common plot remained 5% of the total area of the land. Therefore, late Shri Krishnakumarsinhji (the predecessor-in-title and the ancestor of the petitioners) was required to provide the open plot admeasuring 4619 sq. yards and out of this common plot admeasuring 4616 sq. yards was considered as a common plot provided for the plotting made for the Respondent Society. Thereafter at the request made by the predecessor-in-title the construction was permitted in the area / plot admeasuring 8619 sq. yards and the plotting was made in the surplus area admeasuring 3220 sq. yards and the construction was made on 3220 sq. yards of the land as per the order at Annexure-D. However, the remaining land / plot was kept open for which the revenue dues were paid by the petitioners and it was shown throughout in the name of the petitioners and the City Mamlatdar, Bhavnagar issued the certificate dated 5.7.2000. However, when the Collector, Bhavnagar permitted the construction vide order at Annexure-D dated 8.12.1971 as per revised lay out plan the Respondent No.3 raised an objection vide application at Annexure-H dated 24.3.1972. The order passed by Respondent No.3 negatived the conditions and it was not carried further. However, again application came to be Page 3 of 18 C/SCA/14843/2005 JUDGMENT made by Respondent No.3 on 2.11.1992 to the Collector, Bhavnagar for not granting the permission of sale or transact and / or for sanctioning of the plan. The said application was rejected by the Collector, Bhavnagar vide order dated 15.4.1972. Thereafter when the petitioners applied to the Bhavnagar Municipal Corporation ("BMC") for sanction of the building plan, the BMC refused to sanction the plan of the petitioners vide letter dated 12.1.2000 stating that the Collector has directed BMC not to sanction the plan and / or not permit the petitioners to sale or transfer. It is contended that as the Respondent No.3 has failed in its attempt to establish its title to the land in question (open plot) and the petitioners were permitted to put up construction by the Collector, Bhavnagar vide order dated 8.12.1971 at Annexure-D, Regular Civil Suit No.154 of 2000 is made by Respondent No.3 in the court of Civil Judge (SD) Bhavnagar for cancellation of the order of the Collector, Bhavnagar dated 8.12.2007 and the application exh.5 for the interim relief is also filed and no order has been passed. Therefore it is contended that after 20 years from the date of the order dated 8.12.1971 and granting permission the Collector Bhavnagar had served the notice to show cause as to why it should not be cancelled on the ground stated in the show cause notice and challenged in the transfer petition on the grounds stated in the memo of petition and the reply was filed and ultimately the Collector, Bhavnagar by order 12.6.2001 Page 4 of 18 C/SCA/14843/2005 JUDGMENT cancelled the order dated 8.12.1971 holding that the area of the common plot No.59 shall be 8619 sq. yard as per the original order of NA permission dated 27.12.1960. The said order has been challenged by way of appeal before the Secretary (Appeals), Revenue Department who dismissed the same and confirmed the order passed by the Collector, Bhavnagar which is produced at Annexure-O on the ground stated in the memo of petition.

4. Heard learned Counsel Shri A.J.Patel for the petitioners and learned AGP Shri Bharat Vyas for the Respondent State.

5. Learned Counsel Shri A.J.Patel pointedly referred to the questions which have been posed for consideration of the court as stated in detail in memo of petition inter alia whether the action on part of the Collector, Bhavnagar, initially the cancellation of the order dated 8.12.1971 after the lapse of 30 years is arbitrary, discriminatory and in violation of Constitution of India. Further, it has also been contended that the order of cancellation after 30 years and invocation of power is contrary to the pronouncement of the Hon'ble Apex Court and the High Courts regarding exercise of such powers beyond a reasonable period. It is also contended that whether the Respondent No.3 has any right, title, interest over the land - common plot in view of the fact that the claim regarding the plot was already rejected by Collector by order dated 15.4.1972 which has not been challenged and therefore it is required to be examined in Page 5 of 18 C/SCA/14843/2005 JUDGMENT context of the principles of res judicata would apply or not. Learned Counsel Shri Patel referred to the background of the facts and also referred to the papers at length. He submitted that in the year 1960 the order granting NA permission was passed by the Collector. Thereafter by order dated 8.12.1971 at Annexure-D permission has been granted which is sought to be cancelled after a period of 30 years without any justification. Learned Counsel Shri Patel referred to the facts and submitted that the land in question was conveyed by a registered sale deed in favour of individuals and thereafter the society was formed. He emphasized that there is no conveyance in respect of these lands for which the right or the claim is made by Respondent No.3. Learned Counsel Shri Patel submitted that if it were to be transferred or conveyed then at the time of execution of conveyance / sale deed it would have been covered or included. Learned Counsel Shri Patel further submitted that in fact subsequently permission has been granted for development of the plots and have been permitted to be made for part of the land which itself would suggest that it was the land belonging to the petitioners and their family for which the order of the Collector dated 15.4.1972 has been accepted and therefore it would still remain as valid. Learned Counsel Shri Patel therefore submitted that the exercise of power beyond reasonable period i.e. 30 years is arbitrary and illegal. Learned Counsel Shri Patel submitted that even if there Page 6 of 18 C/SCA/14843/2005 JUDGMENT is a nullity it could have been challenged within a reasonable time and the observations which are made are not correct. Learned Counsel Shri Patel submitted that as per prevalent policy or the law 5% of the plot is kept as common plot for which a claim could be made by Respondent No.3. Learned Counsel Shri Patel emphasized that the conveyance is by a separate registered sale deed in favour of each individual and thereafter when they formed the society, the common plot should be 5% of the total area. Learned Counsel Shri Patel submitted that at the most the claim could be made for 5% even though there is no transaction or document with regard to the transfer of any such portion of land. Learned Counsel Shri Patel submitted that still assuming as per the policy or the law 5% was required to be given or kept open then also the remaining portion or the open land could not be claimed by Respondent No.3 as its own merely because it forms large chunk of land belonging to the petitioners and the claim for the whole of the land by Respondent No.3 without any title or the documents is misconceived. Learned Counsel Shri Patel referred to the judgment of the Hon'ble Apex Court reported in AIR 1992 SC 111 -State of Punjab and Ors. v. Gurdev Singh and Ashok Kumar and emphasized the observations made in paragraphs 4, 5, 6 and 8. Learned Counsel Shri Patel also emphasized that the statute of limitation was intended to provide time limit for all suits conceivably. In the same manner Page 7 of 18 C/SCA/14843/2005 JUDGMENT any kind of a claim or a suit could be made within a reasonable period and if the suit could not be maintainable there is no justification for such an order setting aside the permission which has already been granted and on the basis thereof further steps have been taken like in the present case NA permission and subsequent transaction of sale of individual plots. Learned Counsel Shri Patel submitted that not only order dated 15.4.1972 but even order dated 8.12.1971 has not been challenged by anyone before any forum and the order has remained in force throughout. Learned Counsel Shri Patel pointedly referred to the impugned order and submitted that reference to the general clause is of no consequence when the order has remained in force for all such period. Learned Counsel Shri Patel submitted that the petitioner was ready to keep 5% of the land as a common plot as it was originally provided in the law at the relevant time and Respondent No.3 can at the most have a claim towards common plot for 5% of the total land and how can the entire chunk of land could be claimed by Respondent No.3 without any basis or justification.

6. Learned Counsel Shri Patel further submitted that if the order of 1971 granting permission is followed and which has remained followed throughout can the subsequent incumbent in the same office (Collector) pass an order after such a lapse of period that the order of his predecessor is not valid. It was submitted that the same authority cannot sit in appeal over the order passed Page 8 of 18 C/SCA/14843/2005 JUDGMENT earlier by the predecessor or the incumbent in the office. Learned Counsel Shri Patel emphasized that there is no further proceedings or challenge to the said order and therefore at the instance of some private party even it is sought to be reviewed or modified which would be without any jurisdiction.

7. Learned Counsel Shri Patel has also submitted that Civil Suit No.154 of 2000 is filed in the year 2000 at much belated stage which is pending for which he referred to the papers and submitted that another suit is filed against the Society and status quo is granted. Learned Counsel Shri Patel submitted that the application for joining as party by the petitioner has been dismissed, however, it would not have much relevance. Learned Counsel Shri Patel therefore submitted that the moot question is whether after a lapse of period of 30 years the order granting permission dated 14.4.1971 came to be questioned by the same authority and the answer has to be in negative. Learned Counsel Shri Patel referred to various authorities with regard to the reasonable period for exercise of power. In support of his submission he has referred to and relied upon various judgments.

8. Learned Advocate Shri Satyam Chhaya for Respondent No.3 submitted that the land in question is admeasuring 8614 sq. yard, out of which 322 sq. yard of land have been plotted. However, he submitted that though the submission is made that whether the same authority can review or reconsider the Page 9 of 18 C/SCA/14843/2005 JUDGMENT order passed by the predecessor or the incumbent is misconceived as the same authority or the subsequent incumbent can examine and pass appropriate order setting aside the ex parte order. Learned Advocate Shri Chhaya submitted that it is a matter of ex parte order therefore it is always open for the authority to reconsider or examine the relevant record and pass the order. Again learned Advocate Shri Chhaya referred to Annexure-J. He submitted that the land is forming common plot where the Respondent No.3 Society is interested. Learned Advocate Shri Chhaya submitted that though separate documents were executed for transfer of portion of the land individually, subsequently, the society has been formed and it would not make any issue as the common plot is required to be maintained as per law. He therefore submitted that the attempt of the petitioner to snatch out a portion of land which was throughout a common plot of Respondent No.3 cannot be allowed to succeed.

9. Learned AGP Shri Bharat Vyas referred to the papers including the order dated 8.12.1971. He submitted that though no document is executed by the petitioners, but the form under Section 6 of the ULC Act was filled in by the original holder of the land and this portion is not shown which would imply that it was not claimed as individual land of the petitioners. Learned AGP Shri Bharat Vyas pointedly referred to the order of the Collector dated 8.12.1971 and other Annexures. He submitted Page 10 of 18 C/SCA/14843/2005 JUDGMENT that when the order is fraud delay may not be the only consideration.

10. In view of this rival submissions, it is required to be considered whether the present petition can be entertained and the impugned order at Annexure-O can be sustained or not.

11. From the relevant discussions and background of the facts it is evident that originally the land belonged to the predecessor of the petitioners (Krishnakumarsinhji - erstwhile ruler of the State). The NA permission is granted in the year 1960 and thereafter on the basis of permission granted to put up construction by the Collector, Bhavnagar vide order dated 8.12.1971 the plots were marked which have been conveyed by separate registered sale deed in favour of different individuals who have in turn form the Respondent No.3 - Society or the association. Thus, the claim of the individual members of Respondent No.3 would be confined to their respective area conveyed by a registered sale deed. Further, there is no mention in any of the conveyance / sale deed with regard to the common plot as it was a separate transaction with each individual and admittedly Respondent No.3 Society has been formed later on. Again assuming that as per the prevalent law at the relevant time common plot is required to be maintained and therefore 5% of the total area of the land is required to be maintained as a common plot. Admittedly, the petitioners have no objection for leaving 5% of the total area of Page 11 of 18 C/SCA/14843/2005 JUDGMENT the land towards the common plot.

12. Therefore, the real crux of the matter is whether any claim could be made by the Respondent No.3-Society or its members in respect of the land other than which has been conveyed to the members by a registered sale deed individually. Therefore the remaining land which has been left out admittedly belonged to the petitioners as there is no dispute with regard to the title over the land inasmuch as the members of the Respondent No.3-Society also derive their title through the sale deed executed by the petitioners in favour of the members individually by a registered sale deed. Thus at the most the Respondent No.3-Society could make a claim for 5% of the land as a common plot and not the whole of the remaining parcel of the land which admittedly belonged to the petitioners. Normally at the time of conveyance or the sale deed the reference is made to the common plot or how it could be provided for the common plot. Therefore the remaining land which belonged to the predecessor of the petitioners - Krushnakumarsinhji (erstwhile ruler of the State) there is no dispute that he has the right, title and interest over the land in question. Therefore when the entire land belonged to the petitioner or his predecessor as a erstwhile ruler of the State and only part of the land has been conveyed by a registered sale deed in favour of the members of the Respondent No.3- Society which is formed later on it cannot be a subject matter Page 12 of 18 C/SCA/14843/2005 JUDGMENT of dispute or claim by the members of the Respondent No.3- Society and no claim could be made over the remaining land. Merely because the remaining land is adjacent to the common plot or the open land the entire land cannot be labeled or converted into a common plot over a period of time irrespective of the conveyance of the sale deed or the transaction of the sale in favour of the individual members of the Respondent No.3-Society qua each individual plot. Therefore as per the provisions of the Transfer of Property Act the land could be conveyed by execution of a conveyance or the sale deed. Admittedly the sale deeds are executed in favour of each individual member of the Respondent No.3-Society to the extent of the area of the plot only and at the most 5% could be claimed as a common plot and no claim could be made for the remaining area of the land which is lying belonging to the original owner i.e. the petitioners or the predecessor-in-title of the petitioners. The members of the Respondent No.3-Society are the transferees who have been conveyed by execution of conveyance like sale deed in their favour to the extent of the area of the plot who then formed the Respondent No.3-Society and therefore the submissions made that the entire land is a common plot is misconceived.

13. The another facet of the matter is regarding the propriety and the justification for exercise of such powers or reconsideration by the Collector when he exercised the power Page 13 of 18 C/SCA/14843/2005 JUDGMENT to cancel the development permission granted vide order dated 8.12.1971. In purported exercise of power the NA permission which is granted in the year 1960 and the development permission which has been granted as stated above on 8.12.1971 is sought to be cancelled at belated stage in purported exercise of powers. However it is required to be mentioned that on the basis of the NA permission granted in the year 1960 and the development permission granted vide order dated 8.12.1971 by the Collector, Bhavnagar at Annexure-D, the plotting has been made which has been conveyed by a registered sale deed in favour of the individual members of the Respondent No.3-Society by a registered sale deed. In fact the Collector vide order dated 15.4.1972 had rejected the application made by Respondent No.3-Society claiming right, title over the plot in question.

14. Therefore as rightly submitted it would stare in the face when any such claim is again sought to be made inasmuch as the law does not permit the belated claim or vexatious claim over the same subject matter made again. Again the exercise of power at such belated stage as rightly contended by learned Counsel Shri Patel is without any justification. It is well accepted that normally the powers have to be exercised within a reasonable period. The Hon'ble Apex Court in catena of judicial pronouncements as well as High Court has laid down broad guidelines that the powers have to be exercised within a Page 14 of 18 C/SCA/14843/2005 JUDGMENT reasonable period. It is also observed and laid down that even if the statute does not provide for any exercise of power, any time limit it has to be within a reasonable period. The High Court in a judgment reported in 2011 (2) GLR 1676 - Bhanji Devshibhai Luhar v. State of Gujarat & Ors. has made the observations that even if the transaction is void but has remained in force it cannot be disturbed, meaning thereby the things which have settled over a period of time cannot be unsettled. It has been observed and quoted referring to the earlier judgment of the Hon'ble Apex Court in case of State of Gujarat v. Patel Raghav Natha - 1969 (2) SCC 187:

"The question arises whether the Commissioner can revise an order made under s. 65 at any time. It is true that there is no period of limitation prescribed under s. 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised."

15. Again in a full bench judgment reported in 1996(3) GLR 783 - Shailesh Jadavji Varia v. Sub-Registrar, Vadodara & Ors. the aspect of exercise of power under the Bombay Stamp Act was considered and it has been observed:

"From the aforesaid decisions, there is no doubt in our minds that the power under sub-sec(1) of Sec.32-A of the Act can be exercised within reasonable period and no outer limit can be fixed for exercise of such power. The decision in Patel Raghav Natha (supra), in our considered opinion, cannot be read as laying down universal rule applicable to all statutes, at all times Page 15 of 18 C/SCA/14843/2005 JUDGMENT and under all circumstances without reference to the scheme of the Act, underlying object to grant revisional power and consequences which may ensue therefrom.............."

However, again it has been observed:

"What is 'reasonable period' would depend upon the facts and circumstances of each case. If a delay of few months cannot be explained, it would be beyond reasonable period. If a delay of years can be explained and justified, it would be 'within reasonable period'. When the power is exercised 'within reasonable period'. It cannot be successfully attacked. When this power of reasonableness is read into the provision, the provision does not become unreasonable or arbitrary."

16. Therefore the moot question is what could be said to be a 'reasonable period', which has again been considered by the Hon'ble Division Bench of the High Court in a judgment in case of Chandulal Gordhandas Ranodriya and ors. v. State of Gujarat & Ors. reported in 2013(2) 1788 - Chandulal Gordhandas Ranodriya & Ors. v. State of Gujarat & Ors. quoting the earlier judgment of the Hon'ble Apex Court reported in 2002 (1) SCC 134-Veerayee Ammal v. Seeni Ammal. Again according to the Advanced Law Lexicon by P.Ramanatha Aiyer, 3rd Edn. 2005, 'reasonable time' has been discussed and it has been clearly observed:

"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer."

Page 16 of 18

C/SCA/14843/2005 JUDGMENT

17. Again, the Hon'ble Apex Court in a judgment reported in (2005) 7 SCC 667 in the case of Joseph Severance v.

Benny Mathew has considered the word "reasonable time"

and has observed that the expression "reasonable time" means so much time as is necessary under the circumstances to do conveniently what the contract or duty requires should be done in a particular case.

18. Therefore considering all these aspects with regard to what could be the reasonable period, the Hon'ble Divison Bench in a judgment in case of Chandulal Gordhandas Ranodriya and ors. v. State of Gujarat & Ors. (supra) has made the observations:

"It must be fairly said that if the statute does not prescribe time limit for exercise of revisional powers, it does not mean that such powers can be exercised at any point of time even if there is a breach of Section 43 of the Act, which is a provision which relates to a new tenure land, rather it should be exercised within a reasonable period of time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. ............................................ the powers must be exercised within a reasonable period of time even in the case of transaction which would be termed as void transaction."

19. Therefore having regard to the background of the facts and circumstances and the discussion made herein above, the impugned order at Annexure-O dated 19.2.2005 passed by the Secretary (Appeals) confirming the order passed by the Page 17 of 18 C/SCA/14843/2005 JUDGMENT Collector, Bhavnagar at Annexure-N dated 12.6.2001 cannot be sustained and deserves to be quashed and set aside and the order dated 8.12.1971 passed by the Collector, Bhavnagar deserves to be restored and maintained. The present petition stands allowed.

20. However, it is clarified that 5% of the total area would be maintained as the common plot while considering the calculation of the entire open plot of land admeasuring 8169 sq. yards.

Rule is made absolute to the aforesaid extent. No order as to costs.

(RAJESH H.SHUKLA, J.) JNW Page 18 of 18

Unlock Advanced Research with PRISMAI

Gujarat High Court