Gujarat High Court
State Of Gujarat vs Natwarlal Jagdishbhai Acharya on 6 July, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/530/2022 JUDGMENT DATED: 06/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 530 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 18931 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 530 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
NATWARLAL JAGDISHBHAI ACHARYA
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Appearance:
MR LB DABHI, ADDL. GOVERNMENT PLEADER for the Appellant(s) No. 1,2
MS ARCHANA R ACHARYA(2475) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/07/2023
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NEUTRAL CITATION
C/LPA/530/2022 JUDGMENT DATED: 06/07/2023
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ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J. C. DOSHI) Heard learned Assistant Government Pleader Mr. LB Dabhi for the appellants State and learned advocate Ms. Archana Acharya for the respondent.
1. This intra Court appeal under clause 15 of the Letters Patent is directed against the judgment and order dated 26.7.2019 delivered in Special Civil Application No.18931 of 2016 passed by the learned Single Judge, whereby the learned Single Judge held that the order passed by the Collector in Appeal/Jaman/108(6) Case No.83 of 2016 is bad in law and hence, quashed and set aside the order.
2. Facts are briefly stated as, the original petitioner has purchased land bearing survey No.535/1 situated at village Thanpar, Tal: Rapar, Dist: Kachchh on 26.4.2005 from one Jayeshbhai Bhanji Patel, power of attorney holder of original owner Kuvarbai Akhaibhai Chaudhary, by way of registered sale deed No.897. The registered sale deed has been given effect by the revenue department by mutating entry No.607 in favour of the original petitioner on 26.2.2006 and certified on 27.9.2007. Subsequently, the Deputy Collector passed an order of promulgation and also passed an order giving effect of mutation entry No.747 dated 16.9.2008 in the revenue records, which was certified on 26.12.2008. After a span of seven years, the Secretary and Commissioner (Land Development), Revenue Department, Gandhinagar addressed a letter dated 3.4.2012 to Page 2 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023 NEUTRAL CITATION C/LPA/530/2022 JUDGMENT DATED: 06/07/2023 undefined the Collector, Kachchh stating that the original petitioner and their family members are not agriculturists. The documents, which are produced for claiming to be agriculturist are fabricated and hence, there is breach of section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (in short "the Tenancy Act"). The letter indicates to take necessary steps. Pursuant to such letter, the Collector initiated suo motu proceedings and took the revenue entry into appeal under Rule 108(6) of the Bombay Land Revenue Rules (in short "the Rules") being case No.83 of 2016. The order dated 19.8.2016 has culminated into proceedings, whereby the Collector dropped the proceedings and further directed the Mamlatdar and ALT, Rapar to carry out proceedings under sections 100 and 122 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kachchh Area) Act, 1958 and to complete the same within six months.
3. Since the action of the Collector has taken after a period of 10 years, the original petitioner approached the learned Single Judge by way of filing captioned Special Civil Application seeking relief to quash and set aside the order dated 19.8.2016 passed by the respondent No.1 - Collector in Appeal/Jaman/108(6)/Case No.83 of 2016 and permanently restrain the respondent No.2- Mamlatdar from taking any action in furtherance of the impugned order of respondent no.1 and not to disturb mutation entry no.607.
4. The learned Single Judge allowed the petition in two counts. Firstly, that the contemplation of the Collector for taking the suo motu review against the entry mutated and Page 3 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023 NEUTRAL CITATION C/LPA/530/2022 JUDGMENT DATED: 06/07/2023 undefined certified in the revenue records in the year 2006 after 10 years is in teeth of law as has been settled by the Hon'ble Apex Court in case of State of Gujarat Vs. Raghav Natha and others reported in AIR 1969 SC 1297 and secondly, the Secretary (Revenue Department) has believed that the original petitioner and his family members are agriculturists. The order of the Special Secretary (Revenue Department) has been confirmed in Special Civil Application No.16826 of 2014 and allied matters. The said order is affirmed in onward proceedings in Letters Patent Appeal (Stamp) No.1482 of 2014 by the Division Bench of this Court and in SLP (Diary) No.44474 of 2018 before the Hon'ble Apex Court.
5. The above consideration has become reason for the learned Single Judge to allow the petition and to quash and set aside the order under challenge of the Collector. The State of Gujarat is aggrieved by the impugned order and as such takes the exception of it by filing this Letters Patent Appeal .
6. Heard learned AGP Mr. LB Dabhi for the appellants - and learned advocate Ms. Archana Acharya for the respondent - original petitioner.
7. Facts which are stated herein above are undisputed. The original petitioner has purchased the agricultural land vide registered sale deed on 11/5/2005 from its erstwhile owner. In view of Chapter XA of the Gujarat Land Revenue Code, the effect of the registered sale has been given in the record of rights. The mutation entry NO.607 came to be mutated in the revenue records on 26.2.2006 and later on certified on 27.9.2007. The Page 4 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023 NEUTRAL CITATION C/LPA/530/2022 JUDGMENT DATED: 06/07/2023 undefined promulgation entry was also passed. First time after seven years, the Secretary and Commissioner (Land Development), Revenue Department, Gandhinagar noticed some irregularities that the original petitioner and other family members are not agriculturists and their documents are forged and fabricated. Thus, he wrote letter on 3.4.2012 to the Collector, Kachchh informing the same. Again four years of yawning break has been taken by the Collector to initiate proceedings. The suo motu proceedings under Rule 108(6) of the Rules has been taken after 10 years.
8. Learned AGP Mr. LB Dabhi is not in a position to controvert above fact while submitting that since the original petitioner was not agriculturist, action can be taken at any point of time, since the act of mutation of the entry based on fabricated and forged documents itself is nonest. The period of limitation would not come in the way of the Collector to initiate proceedings under Rule 108(6) of the Rules. He therefore, would submit that the learned Single Judge has erred in allowing the petition by quashing and setting aside the impugned order passed by the Collector.
9. Canvassing above submissions, learned AGP Mr. LB Dabhi would submit to allow the Letters Patent Appeal.
10. As against such submission, learned advocate Ms. Archana while Acharya appearing for the respondent - original petitioner supporting the impugned judgment and order would submit that there are as many as other 11 Letters Patent Appeals decision Page 5 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023 NEUTRAL CITATION C/LPA/530/2022 JUDGMENT DATED: 06/07/2023 undefined have been arrived at in regards to the same issue in favour of the family members of the original petitioner. She would further submit that in view of settled provisions of law, which has been relied upon by the learned Single Judge in case of Raghav Natha (supra), initiation of suo motu proceedings after 10 years is beyond reasonable time period and cannot be considered as legally faceted. She would further submit that the learned Single Judge has rightly believed to allow the captioned petition. This was the submission of learned advocate Ms. Archana Acharya to dismiss the Letters Patent Appeal.
11. There is no gainsay that the Collector has started the suo motu proceedings after 10 years of certification of the mutation entry. However, while passing the order, the Collector dropped the proceedings initiated under Rule 108(6) of the Rules and while doing so, under jurisdiction of the Rules read with Gujarat Land Revenue Code directed the Mamlatdar to start the proceedings u/s 100 and 122 of the Tenancy Act.
12. In Raghav Natha (supra), it is observed and held by the Hon'ble Apex Court as under:-
"12. 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.
13. It seems to us that s. 65 itself indicates the length of the reasonable time within which the Commissioner must Page 6 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023 NEUTRAL CITATION C/LPA/530/2022 JUDGMENT DATED: 06/07/2023 undefined act under, s. 21 1. Under s. 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading ss. 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the 'Collector on October 12, 1961, i.e. more than a year after the order, and it seems to us that this order was passed too late."
13. The Division Bench of this Court in case of Bharatbhai Naranbhai Vegda Vs. State of Gujarat reported in 2016(2) GLR 102 held that if action of initiation of the show cause notice is without jurisdiction or ex facie barred by delay, it cannot survive. Para 8 to 10 of the said judgment are reproduced hereunder:-
"8. On the first aspect, for reasonable period, we may refer to some of the decisions, though of course there are number of such decisions. The first judgment on the principle delay in exercise of power came to be considered in the case of State of Gujarat vs. Patel Raghav Natha reported at (1969) 2 SCC 187, wherein it was held that if the revisional authority was inclined to exercise the power under the Bombay Land Revenue Code, it ought to have been satisfied that such power has been invoked within reasonable time, otherwise the bar of delay would operate. Thereafter, there are number of decisions on the said point but, we may usefully refer to the recent decision of this Court in the case of Chandulal Gordhandas Ranodriya & Ors. v. State of Gujarat reported at 2013(2) GLR 1788, Page 7 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023 NEUTRAL CITATION C/LPA/530/2022 JUDGMENT DATED: 06/07/2023 undefined wherein, this Court while considering the question of delay in initiation of action under section 84C of the Bombay Tenancy and Agricultural Lands Act, in a case where delay was about 5 years, observed at paragraph 13 as under:
"13. In our opinion, it is well settled that even though void transaction if is allowed to remain effective for considerable long period, the authority named therein will be precluded from initiating proceedings to annul it. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed for a considerable period and by a passage creating valuable rights in favour of a considerable section of people, like the appellants in the present case, it is difficult to accept the proposition that despite the change the competent authority under the Act would be entitled to exercise powers under Section 84(C) of the Act at any point of time." Further, this Court in the said decision elaborately considered the question of delay and the reasonable period at paragraph 16, which reads as under: "16. In the case of Employees State Insurance Corporation v. C.C. Santhakumar reported in 2007(1) SCC 584, the Supreme Court has elaborately explained this principle of action to be taken within a reasonable period of time. It would be appropriate for us to quote paragraph Nos.35, 36, 37, 38, 39 and 40. "35. A "reasonable period" would depend upon the factual circumstances of the case concerned. There cannot be any empirical formula to determine that question. The court/authority considering the question whether the period is reasonable or not has to take into account the surrounding circumstances and relevant factors to decide that question. 36. In State of Gujarat v. Patel Raghav Natha (1969 (2) SCC 187) it was observed that when even no period of limitation was prescribed, the power is to be exercised within a reasonable time and the limit of the reasonable time must be determined by the facts of the case and the nature of the order which was sought to be varied. This aspect does not appear to have been specifically kept in view by the Division Bench. Additionally, the points relating to applicability of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977, and even if it is held that the Act was applicable, the reasonableness of the time during which action should have been initiated were also not considered. It would be hard to give an exact definition of the word "reasonable". Reason varies in its conclusions Page 8 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023 NEUTRAL CITATION C/LPA/530/2022 JUDGMENT DATED: 06/07/2023 undefined according to the idiosyncrasy of the individual and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic stands now like the jingling of a child's toy. But mankind must be satisfied with the reasonableness within reach; and in cases not covered by authority, the decision of the Judge usually determines what is "reasonable" in each particular case; but frequently reasonableness "belongs to the knowledge of the law, and therefore to be decided by the courts". It was illuminatingly stated by a learned author that an attempt to give a specific meaning to the word "reasonable" is trying to count what is not a number and measure what is not space. It means prima facie in law reasonable in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know. (See: Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar (1987 (4) SCC 497) and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. (1989 (1) SCC 532). As observed by Lord Romilly, M.R. in Labouchere v. Dawson (41 LJ Ch 472) it is impossible a priori to state what is reasonable as such in all cases. You must have the particular facts of each case established before you can ascertain what is reasonable under the circumstances. Reasonable, being a relative term is essentially what is rational according to the dictates of reason and not excessive or immoderate on the facts and circumstances of the particular case. 37. These aspects were highlighted in Collector and Others v. P.Mangamma and Others (2003 (4) SCC 488). 38. As observed in Veerayee Ammal v. Seeni Ammal (2002 (1) SCC 134), it is "looking at all the circumstances of the case; a "reasonable time" under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea". 39. According to Advanced law Lexicon by P. Ramanatha Aiyar 3rd Edition, 2005 reasonable time means as follows: "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.
"Reasonable Time" is defined to be so much time as is Page 9 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023 NEUTRAL CITATION C/LPA/530/2022 JUDGMENT DATED: 06/07/2023 undefined necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. If it is proper to attempt any definition of the words "reasonable time", as applied to completion of a contract, the distinction given by Chief Baron Pollock may be suggested, namely, that a "reasonable time" means as soon as circumstances will permit. In determining what is a reasonable time or an unreasonable time, regard is to be had to the nature of the instrument, the usage or trade or business, if any, with respect to such instrument, and the fact of the particular case. The reasonable time which a passenger is entitled to alighting from a train is such time as is usually required by passengers in getting off and on the train in safety at the particular station in question. A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than "directly" such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea. Reasonable time always depends on the circumstances of the case. (Kinney) It is unreasonable for a person who has borrowed ornaments for use in a ceremony to detain them after the ceremony has been completed and the owner has demanded their return. (AIR 1930 Oudh 395). 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". [See: Joseph Severance v. Benny Mathew (2005(7) SCC 667)] 40. In all these cases at hand the factual aspects have not been examined, because the grievance appears to have been focused on the applicability of Section 77 (1A)(b)." Further, at para 19, it was observed as thus- "19. 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. It is clear from various judgments of the Supreme Court that where a Page 10 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023 NEUTRAL CITATION C/LPA/530/2022 JUDGMENT DATED: 06/07/2023 undefined statutory provision for exercise of any suo motu powers of revision does not prescribe any limitation, the powers must be exercised within a reasonable period of time even in the case of transaction which would be termed as void transaction."
9. We may also record that in the another decision of this Court in the case of Bhanji Devshibhai Luhar Vs State of Gujarat reported at 2011(2) GLR 1676, the question arose for consideration of the initiation of the action after 17 years under the Ordinance itself wherein the provisions of section 54 and 75 of the Ordinance were referred to in the show-cause notice and the action was initiated. This Court at paragraphs 19 to 23, observed thus -
"19. In this background, it deserves to be considered that when the respondent's action of scrutinizing the transaction in question after delay of 17 years is under consideration and when it is apparent that if the respondent's action and decision are allowed to prevail and are not interfered with, the purchaser (i.e. the appellant), as a consequence of the said decision, will be deprived of the land purchased by him before 17 years (by now almost 30 years) then in such facts, circumstances the aforesaid aspects i.e. the fact that the appellant has put the land in question for agricultural use only and has not used the land for any purpose other than agricultural use and has not changed its status and has even incurred expenditure to improve the quality of soil, would become relevant and would deserve due consideration.
20. Even if the concept that the void action cannot be validated on the ground of belated action is applied in present case, then also, in view of the special facts and circumstances of present case it would be appropriate to take into account the peculiar facts of present case which emerge from the record viz:-
(a) during the entire period of 17 years the vendor has not taken out any action in law against the transaction and any suit or proceeding for declaration or for any other relief does not appear to have been filed by the vendor.
(b) the petitioner was an agricultural labourer at the time when the transaction was executed and was tiling and cultivating various agricultural lands.
(c) The petitioner was also artisan i.e. engaged in the activity of preparing agri-tools.
(d) more important is the fact that even after purchasing the land in question the petitioner has, as claimed by Page 11 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023 NEUTRAL CITATION C/LPA/530/2022 JUDGMENT DATED: 06/07/2023 undefined him, continued to use the land for agricultural purpose and the status or nature of the land in question as agricultural land is not changed and it continues to be agricultural land (said factual assertion by the petitioner has not been disputed by the respondents and any contrary evidence is not placed on record)
(e) the petitioner has also claimed that he has incurred substantial expenditure in improving quality of soil.
(f) another important factor which, in the facts of present case, has emerged is that in view of the orders of the authorities it is only the vendor who will stand to gain/benefit since the land, even after the orders, will not vest in the government in absence of any provision providing for such consequential.
21. In light of aforesaid facts of present case, we are of the view that while the conclusion and the decision of the competent and appellate authority holding the transaction in question as void, is in consonance with the provisions of the ordinance and cannot be faulted, in the interest of justice and equity it also ought not be overlooked that the impugned action in exercise of the power under Section 75 of the Ordinance to summarily evict the petitioner, after having allowed the transaction to remain alive for 17 years not only ignores the wide chasm between the date of transaction and the dates of the notice and the order but it also overlooks the fact that the petitioner has continued to put the land to use for agricultural purpose and has not changed the status and nature of the land and that he has also incurred expenditure to improve the quality of soil and invested further amounts for betterment of the land in question. The figures of such expenditure by the petitioner are not available on record, however the respondents have not disputed the said factual assertion by the petitioner.
22. In backdrop of the aforesaid facts and circumstances if we recall the observations by the larger bench in the case of Shailesh J. Varia (supra)to the effect that:- " if 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" (emphasis supplied) and when we consider present case in light of said observations, then we have to record that from the material on file the respondents do not appear to have, in any manner, explained and justified the long gap of 17 years in initiating the action. The said delay of 17 years has remained unexplained and Page 12 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023 NEUTRAL CITATION C/LPA/530/2022 JUDGMENT DATED: 06/07/2023 undefined unjustified. It is only defended on the ground that the transaction is statutorily void. However, while defending the action the aforesaid relevant aspects and the absence of explanation regarding delay are not being taken into account.
22.1 In this context, we may refer to the decision by the Apex Court in the case between Smt. Sulochana Chandrakant Galande v. Pune Municipal Transport and ors (AIR 2010 SC 2962) wherein, while considering the legal position with regard to Section 34 of Urban Land (Ceiling and Regulation) Act 1976 observed in paragraph 23 that:-
"23. The legislature in its wisdom did not fix a time limit for exercising the revisional power nor inserted the words "at any time" in Section 34 of the Act, 1976. It does not mean that the legislature intended to leave the orders passed under the Act open to variation for an indefinite period inasmuch as it would have the effect of rendering title of the holders/allottee(s) permanently precarious and in a state of perpetual uncertainty. In case, it is assumed that the legislature has conferred an everlasting and interminable power in point of time, the title over the declared surplus land, in the hands of the State/allottee, would forever remain virtually insecure. The Court has to construe the statutory provision in a way which makes the provisions workable, advancing the purpose and object of enactment of the statute. In view of the above, we reach the inescapable conclusion that the Revisional powers cannot be used arbitrarily at belated stage for the reason that the order passed in Revision under Section 34 of the Act, 1976, is a judicial order. What should be reasonable time, would depend upon the facts and circumstances of each case." (emphasis supplied) 22.2 We may also refer to a recent decision in the case between Krishnadevi Malchand Kamathia vs. Bombay Environmental Action Group (2011 {3} SCC 363), the Apex Court, has, with regard to void order, observed in paragraph No.16 that:-
"16. It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In Sate of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil, Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd., M. Meenakshi v. Metadin Agarwal and Sneh Gupta v. Devi Sarup, this Court held that whether Page 13 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023 NEUTRAL CITATION C/LPA/530/2022 JUDGMENT DATED: 06/07/2023 undefined an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum. While referring to the earlier decisions in the case State of Punjab (supra) as well as in the case of Sultan Sadik v. Sanjay Raj Sabba (2004 [2] SCC 377) the Apex Court has observed:-
"19.Thus, from the above it emerges that even if the order / notification is void / voidable, the party aggrieved by the same cannot decide that the said order / notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person"
23. Under the circumstances, upon considering the overall facts and circumstances of the present case and in light of the foregoing discussion and having regard to the fact that at the time of transaction the petitioner was agricultural labourer and he purchased the land for agriculture use and since then he has maintained the status of the land and continues to put the land to agricultural use, the decision to compulsorily evict the petitioner after lapse of 17 years (by now almost 30 years) deserves to be set aside.
23.1 One of the reasons for our aforesaid view and conclusion is that the only person who would benefit because of the orders of the lower authorities is the vendor who is party to the disputed transaction. The consequence of the impugned order by the authorities would, ultimately and eventually result into unjust enrichment for the vendor who entered into the transaction and has, since then not taken out any action in law before any competent Court against the transaction.
23.2 Therefore, in view of the facts of the present case, and having regard to the aspects noted in paras 20 to 23.1 above, we are inclined to set aside the impugned orders passed by the lower authorities. We order accordingly."
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10. In our view, the above referred well considered two decisions of this Court makes the position abundantly clear that if the action is to be initiated for setting aside of a transaction under the Ordinance by invoking section 54 read with section 75 of the Ordinance, it has to be within reasonable period. The above referred two decisions are in respect of the cases wherein the powers were exercised and proceedings were initiated after 5 years and 17 years respectively, whereas in the present case, it is after more than 35 years. Hence, we find that the initiation of the action itself can be said as beyond reasonable period and the bar of delay and laches could operate against the authority in initiation of the action. The aforesaid aspect is coupled with two additional circumstances, one is that the land has changed hands further during the period of delay and the ownership is transferred by the purchaser to the another person and the second is that the revenue entries were mutated. Thereafter, they were also certified by the competent authority and in spite of that, no action was taken for cancellation of such entry or otherwise or even for declaration of the transaction as invalid within reasonable period. If during the period of delay, the rights of the parties in the properties are altered, the delay would operate as a bar with more gravity and when the ownership is changed during the period of delay, the bar for not taking action within reasonable period would also operate with more gravity against the authority in initiation of the action. "
14. What perceives that Statute may not have fixed the time limit to set the challenge, but it does not mean that Legislature has kept window open forever to leave order open for challenge even after inordinate time passed. In absence of specific time limit, the State authority needs to exercise power within reasonable period. The title holder cannot be kept under sword Damocles of perpetual uncertainty. The Court while considering such provision has to read the abject aim of Statute to make one workable situation. What could be seen in the case on hand that the Collector has exercised his jurisdiction under Rule 108(6) of the Rules after inordinate and unreasonable time of 10 years. This is arbitrary use of the power. This cannot be Page 15 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023 NEUTRAL CITATION C/LPA/530/2022 JUDGMENT DATED: 06/07/2023 undefined acceptable in judicial arena and in view of the settled law.
15. The learned Single Judge taking note of the inordinate delay in initiating the suo motu proceedings held following:-
"The contemplation of the Collector by assuming liberty to reinitiate the suo moto proceedings with respect to entry in question, which has been mutated and certified in the revenue records in the year 2006, would be opposed to the position of law as has been settled by the Hon'ble Apex Court in the case of State of Gujarat V/s. Raghav Natha and others reported in AIR 1969 SC 1297. To such extent, the observation of the Collector with respect to reserving right to initiate suo moto proceedings with respect to an entry mutated and certified in the year 2006, can be said to be a contemplation beyond reasonable period hence, deserves to be interfered with and accordingly is quashed.
With respect to the directions of the Collector to the Mamlatdar for initiating proceedings under sections 100 and 102 of Gujarat Tenancy and Agricultural Land (Vidarbha Region and Kutch Area) Act,1958, even the same shall be insignificant and tantamount to causing harassment to the petitioner owing to the fact that the petitioner himself and his family members have been declared as "Agriculturists" by the competent authority and which declaration is affirmed by the judgment of this court and Hon'ble Apex Court. Considering the fact that there is no retort from the end of the state government with respect to the factum of petitioner and his family members being agriculturists, the direction of the Collector to initiate proceedings under sections 100 and 102 of Gujarat Tenancy and Agricultural Land (Vidarbha Region and Kutch Area) Act,1958 can be inferred as one without any foundation. Accordingly, this Court sets aside the said direction rendered by the Collector. Having set aside such direction, I do not wish to enter into the aspect as to whether the Collector had jurisdiction to issue such a direction."Page 16 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023
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16. Keeping in mind the law laid down by the Hon'ble Apex Court as well as the Division Bench of this Court, which is noted herein above, the reasons assigned by the learned Single Judge for quashing the order of the Collector impugned are just and correct. No interference is warranted.
17. Worth to note that the original petitioner and his family members have been treated and held as agriculturists by the Special Secretary, (Revenue Department). The State of Gujarat being aggrieved preferred Special Civil Application No.16826 of 2014 and allied matters before the learned Single Judge, which was dismissed and then it was confirmed by the Division Bench in Letters Patent Appeal (Stamp) No.1482 of 2014 and the same has further been approved by the Hon'ble Apex Court in SLP (Diary) No.44474 of 2018. Suffice to say that even if we ignore issue of limitation, the dispute that whether the original petitioner is agriculturist or not, is also put to the rest by judicial decision.
18. The learned Single Judge held that the proceedings initiated by the Collector after inordinate delay is void ab initio in view of the fact that the status of the original petitioner being agriculturist has been approved by all concerned authorities and confirmed in judicial hierarchy. In view of above, this Court finds that there is nothing in the Letters Patent Appeal which permits us to take different view. The impugned order is just, correct and legal. When the statutory provision for exercise of suo motu powers of the revision does not contemplate any limitation, the law is settled that such power must be exercised Page 17 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023 NEUTRAL CITATION C/LPA/530/2022 JUDGMENT DATED: 06/07/2023 undefined within the reasonable period of time. When statute is silent about the period of limitation, the authorities are required to initiate said proceedings within reasonable period. No doubt, what would be the reasonable time would depend upon the facts of each case, but by no means, it can be initiated after inordinate delay of 10 years.
19. Upshot of above, the Letters Patent Appeal is dismissed. Interim relief, if any, stands vacated forthwith.
20. In view of dismissal of Letters Patent Appeal, CA would not survive and stands disposed of accordingly.
(N.V.ANJARIA, J) (J. C. DOSHI,J) SHEKHAR P. BARVE Page 18 of 18 Downloaded on : Sat Sep 16 20:58:06 IST 2023