Gujarat High Court
Decora Marbles And Granites Pvt Ltd vs State Of Gujarat on 28 June, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2007 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DECORA MARBLES AND GRANITES PVT LTD
Versus
STATE OF GUJARAT & 9 other(s)
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Appearance:
MR PRAKASH JANI, SENIOR COUNSEL APPEARING WITH MR GNANESH
BHATT APPEARING FOR MR GAURANG H BHATT(166) for the
Petitioner(s) No. 1
for the Respondent(s) No. 6.2
MR JAYNEEL S. PARIKH, ASSISTANT GOVERNMENT PLEADER/PP for
the Respondent(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 6.7
HCLS COMMITTEE(4998) for the Respondent(s) No. 6.1,6.2,6.3
MR HS MUNSHAW(495) for the Respondent(s) No. 4,5
MR KRUNAL D PANDYA(3283) for the Respondent(s) No. 6.1,6.2,6.3
NOTICE NOT RECD BACK for the Respondent(s) No. 2,6.5.4
NOTICE SERVED for the Respondent(s) No.
1,10,2,3,5,6.4,6.5.1,6.5.2,6.5.3,6.5.4,6.6,6.7.1,6.7.2,6.7.3,6.7.4,6.8,7.1,7.2,7.3
,7.4,7.5,7.6,7.7,8,9
UNSERVED EXPIRED (N) for the Respondent(s) No. 7
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 28/06/2022
ORAL JUDGMENT
With the consent of the learned advocates appearing for the Page 1 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 respective parties, the captioned writ petition is taken up for final disposal.
2. Issue Rule, returnable forthwith. Mr Jayneel S. Parikh, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent nos.1, 2, 3 and 10. Mr H. S. Munshaw, learned advocate waives service of notice of Rule on behalf of respondent nos.4 and 5. Mr Krunal D. Pandya, learned advocate waives service of notice of Rule on behalf of respondent nos.6.1 to 6.3. Respondent nos.7 to 9 though served, no one appeared.
3. The petitioner, has challenged the order dated 5.12.2015 passed by the Collector, Surendranagar as well as order dated 7.3.1989 passed by the Assistant Collector. Further direction is also prayed for to the revenue authorities to enter the name of the petitioner in revenue record namely village form nos.6, 7/12 etc. with respect to the land bearing survey no.90p situated at village:
Bamanbore, taluka: Chotila and consequentially score out the entry of the original owners.
4. Tersely stated, are the facts:
4.1 Land bearing survey no.90p1, admeasuring A-2 02-gunthas situated at village: Bamanbor, taluka: Chotila (hereinafter referred to as "land in question") belonged to Shri Dharamshibhai Devabhai and Shri Ambabhai Devabhai (hereinafter referred to as the "brothers - original owners"). The brothers - original owners, since were desirous of using the land for non-agricultural purpose, made an application on 1.4.1986 to the Taluka Development Officer, Chotila under the provisions of Section 65 of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as "the Code") seeking permission to convert the land. The Taluka Development Officer, according to the petitioner, examined the application and on the Page 2 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 basis of the opinion received from the Circle Officer, granted the permission converting the land in question for non-agricultural purpose namely "Agro-base and mines" i.e. industrial purpose, vide order dated 12.5.1986. Entry no.855 dated 23.8.1986, was posted in the revenue record, which was certified on 25.9.1986. After the order of the Taluka Development Officer, the brothers - original owners on 13.6.1986, sold the land in question to M/s. Alankar Marble Tiles Private Limited i.e. respondent no.8 (hereinafter referred to as "M/s. Alankar Marble Tiles") for the consideration of Rs.1,95,000/-.
4.2 M/s. Alankar Marble Tiles, according to the petitioner, invested an amount of Rs.27,00,000/- and commenced the construction of the factory. Since the Surendranagar District, being declared industrially backward area, at the relevant point of time, subsidy of Rs.8,00,000/- was sanctioned by the State Government and finally loan of Rs.19,48,000/- was sanctioned and in lieu whereof M/s.
Alankar Marble Tiles has executed the equitable mortgage deed in favour of Gujarat State Financial Corporation i.e. respondent no.9 (hereinafter referred to as "the Corporation").
4.3 Somewhere in the year 1986, the order dated 12.5.1986 of the Taluka Development Officer granting N.A. permission was examined by the Assistant Collector which led to the passing of the order dated 7.3.1989 whereby, the Assistant Collector cancelled the order dated 12.5.1986 of the Taluka Development Officer and while doing so, remanded the matter to the Taluka Development Officer, Chotila to decide it afresh. It is the case of the petitioner that though the matter was remanded to the Taluka Development Officer to take a decision afresh, no steps were taken till the year 2013. The petitioner made an application dated 1.7.2013 to the Taluka Development Officer to take necessary steps but to no avail.
Page 3 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 Followed was the representation dated 5.3.2015 but, neither any steps were taken nor any response was given to the petitioner. The petitioner, therefore, challenged the order dated 7.3.1989 before the Collector who, after hearing all parties passed an order dated 5.12.2015, issuing fresh direction to the District Development Officer to take a decision since, by that time, by virtue of the Government Resolution dated 1.7.2008, the powers to decide the N.A. permission were conferred upon the District Development Officer. The petitioner, being aggrieved, has filed the captioned writ petition with the aforementioned prayers.
5. The Taluka Development Officer, has filed reply reiterating the factual aspects. So is the position, with the reply of the respondent no.6.1 who on his behalf as well as on behalf of respondent nos.6.2 to 6.4 and 6.5.2 and 6.5.3, has filed the reply; raising the only objection that the petition is not maintainable as there is an alternative remedy available to the petitioner to challenge the order of the Collector before the higher forum. Rest of the respondents have chosen not to file any reply.
6. Mr Prakash Jani, learned senior counsel appearing with Mr Gnanesh Bhatt, learned advocate for Mr Gaurang H. Bhatt, learned advocate for the petitioner, while taking this Court to the factual aspects, submitted that the brothers - original owners, have applied for non-agricultural purpose, which was duly granted by the Taluka Development Officer and mutation entry no.855 was posted in the revenue record on 23.8.1986 and was subsequently certified on 25.9.1986. Thereafter, the brothers - original owners have executed the registered sale deed in favour of M/s. Alankar Marble Tiles. It is submitted that the brothers - original owners, as is clear from one of the recitals of the sale deed, have waived their rights and the possession of the land in question was given to M/s. Alankar Marble Page 4 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 Tiles and therefore, after the execution of the sale deed in favour of respondent no.8, not only the rights of brothers - original owners but the rights of their heirs stand extinguished. It is further submitted that the respondent no.8, had availed a loan and while doing so, has mortgaged the land in question together with the building and machinery with the Corporation; entry no.919 dated 12.3.1988 has been posted in the revenue record.
6.1 It is submitted that since M/s. Alankar Marble Tiles, failed to repay the debt, the Corporation, issued the advertisement and in exercise of the powers conferred under sections 20 and 29 of the State Financial Corporations Act, 1951 (hereinafter referred to as the "Act of 1951") auctioned the property in favour of the petitioner. It is submitted that the petitioner, was the successful bidder and as a result whereof, the sale deed came to be executed by the Corporation in favour of the petitioner in statutory exercise of powers under Act of 1951. It is submitted that as is discernible from the sale deed, the petitioner has made full payment of Rs.7,61,111/- together with interest and other charges accrued thereon, as per the certificate dated 3.8.1995 issued by the accounts branch of the vendor i.e. the Corporation.
6.2 It is submitted that clearly, the order was passed by the Taluka Development Officer on 12.5.1986 whereas, the proceedings have been initiated by the Assistant Collector almost after a period of 2 years and 7 months. It is submitted that the cognizance of the order, was taken only on 13.12.1988 which, was beyond 2 years and 7 months. It is submitted that the Assistant Collector, has observed that while granting the permission, the Taluka Development Officer, though was obliged to take opinions of the respective authorities, have not taken and therefore, the order granting the N.A. permission is deficient. The case was remanded for reconsideration Page 5 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 in terms of the order passed by the Taluka Development Officer. Based on the order dated 7.3.1989, entry no.944 was posted in revenue record on 1.9.1989 recording the factum of cancellation of the order dated 12.5.1986. It is submitted that after the said entry, the land was treated to be an agricultural land.
6.3 It is submitted that despite the brothers - original owners and their heirs having executed registered sale deed in favour of M/s. Alankar Marble Tiles, they applied for mutation of the entry. As a result whereof, entry no.1739 dated 25.6.2014, came to be posted in the revenue record. It is submitted that vide said entry, the heirship came to be recorded of the heirs. It is submitted that what compelled the petitioner to file the revision application was the entry no.1739 which was posted in the revenue record recording the heirship of the brothers - original owners which, triggered the revision application by the petitioners as the representations filed by it have remained undecided. It is submitted that one of the conditions contained in the sale deed dated 13.6.1986 executed in favour of M/s. Alankar Marble Tiles categorically contained that the names of the brothers - original owners shall be removed from the government records and that the purchaser, would be entitled for mutation of his name. In addition thereto, there is a categorical reference that not only the brothers - original owners, but their heirs, will also have no right over the land in question. Despite such understanding, the heirs of the brothers - original owners had an audacity to move an application for mutation of the entry for heirship and that is how entry no.1739 dated 25.6.2014 was posted in the revenue record and unfortunately, was certified on 14.8.2014.
6.4 It is submitted that the petitioner had purchased the land in question in auction proceedings and therefore, made an application dated 1.7.2013 to the Taluka Development Officer to decide the Page 6 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 application; however, the request of the petitioner had fallen on deaf ears. Another representation dated 5.3.2015 was made but of no avail. It is submitted that since no decision was taken, the names of the heirs of the brothers - original owners came to be posted in the revenue record. The petitioner, thereafter, challenged the order dated 7.3.1989 of the Assistant Collector before the Collector; however, the Collector instead of appreciating the subsequent events of auction proceeding and execution of sale deed in favour of petitioner, remanded the matter to the District Development Officer. Emphasis is laid on the calling for the opinions of the District Industrial office, Gujarat Industrial Development Corporation and District Health Corporation, without realizing that 25 years have passed and industry has been set up over the land in question and is functional and in operation since the year 1989, as well.
6.5 While adverting to the orders passed by the Assistant Collector and the Collector, it is submitted that both the orders deserve to be quashed and set aside as there are no procedural deficiencies available which could have been pointed out. The authorities ought to have appreciated that the petitioner is a bonafide purchaser and the land in question has been purchased in the auction proceedings, conducted by the Corporation in exercise of the statutory powers. It is further submitted that the petitioner also possesses the large machinery and the infrastructure with 20 to 25 employees working and earning their livelihood. It is submitted that clearly, the directions were issued by the Assistant Collector vide order dated 7.3.1989 and till the representations were made by the petitioner in the year 2013 and 2015, no steps were taken which led to the filing of the application. Further more,the error which was committed by the Assistant Collector of remanding the matter, was once again committed by the Collector. The Collector, instead of deciding the same, remitted that matter to the District Development Page 7 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 Officer since the powers were vested in the District Development Officer. It is submitted that unduly long time, has been taken by the authorities in deciding the application.
6.6 It is submitted that if one peruses the affidavit-in-reply filed by the Taluka Development Officer, it appears that the Taluka Development Officer is under impression that the challenge is not to the order, but to the entry; however, so is not the case. If prayers of the petitioner are seen, it is the challenge to the order of the Collector. It is submitted that the petitioner has raised contention about the Collector hearing the matter and passing of the order more particularly, in paragraph 5.7, it is the categorical stand of the petitioner that the order dated 5.12.2015 has been passed by the Collector, without application of mind.
6.7 While rebutting the contents of the replies filed by the private respondents, it is submitted that the private respondents are supporting the order passed by the Assistant Collector as well as objection is raised as regards the maintainability of the captioned writ petition on the ground that there is an alternative remedy available to the petitioner. It is submitted that the brothers - original owners having executed registered sale deed in favour of M/s. Alankar Marble Tiles, the heirs are neither necessary nor proper parties. Their locus also is in doubt. The private respondents have essentially raised two grounds namely (i) availability of the alternative remedy and (ii) the delay. It is the stand of the legal heirs that the entry no.1739 was posted on 25.6.2014 and the order of the Collector, has been passed on 5.12.2015 whereas, the petition has been filed in the year 2017 and therefore, the petition be not entertained, are misconceived, considering the fact that their ancestors have already disposed of the land in question in favour of M/s. Alankar Marble Tiles.
Page 8 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 6.8 It is submitted that so far as the private respondents and their
heirs are concerned, they have no locus, either morally or ethically to raise any objection. It is submitted that what is to be kept in mind is that neither the brothers - original owners nor their heirs have either challenged the sale deed dated 13.6.1986 executed by them in favour of M/s. Alankar Marble Tiles or sale deed dated 21.8.1995 executed by the Corporation in favour of the petitioner. In absence of any challenge, the private respondents, cannot now raise any objection against the mutation of the name of the petitioner in the revenue record. It is submitted that so far as private respondent no.6.1 is concerned, he is the signatory to the sale deed. Once having executed the sale deed in favour of respondent no.8, it would hardly be permissible on the part of the respondents to lay any claim over the land in question.
6.9 While dealing with the contention of the alternative remedy, Mr Prakash Jani, learned senior counsel submitted that the order of the Assistant Collector was under the provisions of section 211 of the Code that would be the revision before the Assistant Collector and the second revision, came to be filed before the Collector. Therefore, two revisions are filed before the revenue authorities. While inviting attention of this Court to the revision application, it is submitted that the petitioner had required the Collector to exercise the revisional powers and the powers are exercised under section 211 of the Code. No scope is left to the authorities to exercise further powers under section 211 of the code, having regard to the language of section 211. It is submitted that assuming that there is an alternative remedy available, there is a registered sale deed executed in favour of the petitioner in exercise of statutory powers under the Act of 1951. It is submitted that under the provisions of section 29 of the Act of 1951, the land was vested in the authority i.e. the Corporation. Section 29 of the Act of 1951 provides for the Page 9 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 rights of the Corporation. It is provided that any transfer of property made by the Corporation in exercise of its powers, shall vest in the transferee all rights in or to the property transferred, as if the transfer had been made by the owner of the property. It is therefore submitted that the transfer by the Corporation, in favour of the petitioner, was with all rights in or to the property making the petitioner owner.
6.10 For the proposition regarding impermissibility for exercise of the powers beyond reasonable period, reliance is placed on the judgment of the Apex Court in the case of State of Gujarat v. Patel Raghav Natha reported in 1969 (2) SCC 187. It is submitted that the issue, was with respect to permission under section 65 of the Code. The Apex Court, was dealing with the question, whether the Commissioner can revise an order made under section 65 of the Code at any time. It has been held and observed that section 65 itself indicates the length of the reasonable time within which the authority can act under section 211. It has been held and observed that under section 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. It has been further held and observed that reading sections 211 and 65 together, the Commissioner must exercise his revisional powers within a few months of the order of the Collector. The Apex Court, when found that the order has been passed by the Collector i.e. more than one year it noted that the order passed was too late.
6.11 Reliance is placed on the judgment of this Court in the case of Bipinchandra G. Dalal v. State of Gujarat reported in 1987 (2) GLR
971. In the case before this Court, N.A. application, was filed in the Page 10 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 year 1982. The Taluka Development Officer granted permission in the month of November 1982 and as a result whereof, the lay out plans were prepared and sub-plots were created. The Secretary, vide order dated June 1984, rejected the objections and cancelled the N.A. permission which was granted in the year 1982. This Court, while relying upon the judgment of the Apex Court in the case of State of Gujarat v. Patel Raghav Natha (supra) held and observed that the exercise of revisional power by the Secretary was after the expiry of reasonable period. It is therefore submitted that in the said case, two years time, was considered as an unreasonable period for exercise of the power by learned Secretary. In the present case the action was taken after a period, two years and seven months.
6.12 Further reliance is placed on the judgment of this Court in the case of Vaghri Jivandas Manji v. State of Gujarat reported in 2008 (3) GLR 2034. The facts of the case, were that N.A. application, was granted vide order dated 11.9.2006. Show cause notice dated 9.10.2007, was issued requiring the petitioner therein to explain that why N.A. permission should not be cancelled; followed by the order dated 10.1.2008 cancelling the N.A. permission which was granted in the year 2006. It is submitted that this Court, quashed the action when, found contrary to the principle of law laid down in the various decisions including the decision in the case of State of Gujarat v. Patel Raghav Natha (supra).
6.13 Reliance is also placed on the judgment of this Court in the case of Rajesh Vitthalbhai Patel v. Special Secretary (Appeals) passed in Special Civil Application no.19903 of 2016. This Court, noted that transaction, has taken place in the year 1991; whereas, the powers have been exercised in the year 2014 by initiating the proceedings on the ground that the transaction was invalid. This Court, has held and observed that "the fact remains that the land in Page 11 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 question has changed the hands and there were subsequent transactions including the purchase of land in question by a registered sale deed by the petitioner as a bonafide purchaser." It has been further observed that "It is also not in question that the land had been converted into N.A. in 1994. Therefore, assuming that there was some misconception by the offier, who granted such N.A. permission, it could have been taken in review or reconsider within a reasonable time to correct the mistake. However, such a mistake committed by the officer in the year 1994 cannot be permitted to be reviewed or examined in exercise of suo motu powers in the year 2014." It is submitted that this Court, has taken note of various judgment of this Court as well as of the Apex Court and ultimately, quashed the action of the revenue authorities. It is therefore submitted that in the present case, the order granting N.A. permission was of the year 1986, which was taken in suo motu revision in the year 1989. Thereafter, no steps worth the name, have been taken by the Taluka Development Officer which led to the submission of the representations by the petitioner and ultimately, what followed, was the order of the Collector dated 5.12.2015 wherein, once again, the Collector has directed the District Development Officer, to decide the application which also, had remained undecided till date. Therefore, the principle laid down by the Apex Court in the aforequoted cases, squarely applies to the facts of the present case. Only on this limited ground, the order of the Assistant Collector dated 7.3.1989 and order of the Collector dated 5.12.2015 deserve to be quashed and set aside.
6.14 Further reliance is placed on the judgment in the case of Satyambhai Keshavlal Patel v. State of Gujarat passed in Special Civil Application no.9622 of 2018 and other allied matters.
6.15 So far as the objection raised by the private respondents as Page 12 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 regards availability of the alternative remedy is concerned, reliance is placed on the judgment of this Court in the case of Ishwarbhai Narayanbhai Patel v. State of Gujarat reported in 2021 (0) AIJEL-HC- 243416. In paragraph 79, this Court has held that "in a case where the statutory authority has not acted in accordance with the provisions of law or acted in defiance of the fundamental principles of judicial procedure, or has resorted to invoke provisions which are repealed, or where an order has been passed in violation of the principles of natural justice, then, in such circumstances, the Writ Court should not hesitate to entertain the writ application despite the fact that the aggrieved person has an efficacious alternative remedy available in law."
6.16 Reliance is also placed on the judgment of this Court in the case of Pravinbhai Kacharabhai Patel v. State of Gujarat passed in Special Civil Application no.15654 of 2021 for the principle that existence of alternative remedy is no bar for exercising the extra ordinary power under Article 226 of the Constitution of India. Reliance is also placed on the judgments of this Court in the cases of Saburbhai Hemabhai Chauhan v. State of Gujarat and Kanuben Daughter of Jaysinh Khushalsinh v. State of Gujarat.
6.17 While concluding it is urged that the petition deserves to be allowed by quashing and setting aside the order dated 5.12.2015 passed by the Collector with a further direction to the revenue authorities, to mutate the name of the petitioner in the revenue record.
7. Mr Jayneel S. Parikh, learned Assistant Government Pleader, supported the order dated 5.12.2015 passed by the Collector. It is submitted that when the permission was granted in the year 1986, there was discrepancy in the procedure, adopted by the Taluka Development Officer inasmuch as, without obtaining the opinions of Page 13 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 the officers concerned, that the order has been passed. The Assistant Collector, in the first instance, has rightly quashed and set aside the order and remanded the matter to the Taluka Development Officer to decide it afresh after obtaining necessary opinions; however, the decision could not be taken which led to the passing of the order dated 5.12.2015 by the Collector whereby, the Collector, has now directed that District Development Officer to decide it afresh. It is submitted that ultimately, the Collector, has remanded the matter to the District Development Officer to decide it afresh. Therefore, no error can be said to have been committed by him in passing such order more particularly, when it is found from the record that the due procedure, was not followed. It is therefore urged that the petition does not require any interference and be rejected.
8. Mr H. S. Munshaw, learned advocate appearing for the Taluka Development Officer has made his submissions along the lines of the reply. No other and further submissions, have been made.
9. Mr Krunal D. Pandya, learned advocate appearing for private respondent nos.6.1 to 6.3 has taken preliminary objection as regards maintainability of the captioned writ petition. It is submitted that if at all, the petitioner is aggrieved by the order dated 5.12.2015 passed by the Collector, the petitioner can very well approach higher forum challenging the said order. It is submitted that during the proceedings, the Collector, found that requisite opinions of the concerned authorities, were not obtained and therefore, has remanded the matter to the District Development Officer to call for the opinions/reports from the District Industrial Officer and other authorities and thereafter, to decide about the grant of N.A. permission with respect to the land in question. It is submitted that the order, has been passed by the Collector in sync Page 14 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 with the Notification dated 1.7.2008 and Resolution dated 8.4.2011. It is further submitted that initially, the powers were with the Taluka Development Officer; however, subsequently, the powers for granting N.A. permission are transferred to the District Development Officer. It is therefore, submitted that after the order dated 7.3.1989 passed by the Assistant Collector, setting aside the order of the Taluka Development Officer, the land in question stands converted into agricultural land and therefore, there was application submitted by the private respondents to mutate their names in the revenue record and entry no.1739 has been posted in the revenue record on 25.6.2014. If at all the petitioner has any grievance, it needs to challenge the entry no.1739 which was posted in the revenue record on 25.6.2014, after following the due procedure, but has not been challenged.
9.1 It is submitted that the petitioner, has not taken any steps for mutation of the entry after the execution of the so-called sale deed in its favour by the Corporation. It is submitted that neither M/s. Alankar Marble Tiles nor the petitioner, have taken necessary steps to post the entries in the revenue record. It is therefore submitted that the order dated 7.3.1989 passed by the Assistant Collector and the order dated 5.12.2015 passed by the Collector are in right earnest and do not deserve to be interfered with and the petition be dismissed.
10. Heard the learned advocates appearing for the respective parties. Considered the documents available on record.
11. Before proceeding further, few facts, which gave rise to the filing of the captioned writ petition, are worth considering. The land in question, as is discernible from the record, originally belonged to Shri Dharamshibhai Devabhai and his brother Shri Ambabhai Devabhai who applied for the N.A. permission which, was granted Page 15 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 vide order dated 12.5.1986 by the Taluka Development Officer and almost after a period of 2 years and 7 months, decision was taken by the Assistant Collector vide order dated 7.3.1989 cancelling the same. While doing so, the matter was remanded to the Taluka Development Officer to take a decision afresh, after seeking opinions and confirmation by the Executive Committee of the panchayat. Entry no.944 dated 1.9.1989, was posted in the revenue record and was certified.
12. In the interregnum, the brothers - original owners executed a sale deed dated 13.6.1986 in favour of M/s. Alankar Marble Tiles. Entry no.856 dated 23.8.1986 was posted in the revenue record and was duly certified. It appears that M/s. Alankar Marble Tiles had obtained the loan and the land in question was mortgaged with the Corporation; entry no.919 dated 10.8.1988 was posted in the revenue record and was certified on 8.12.1989. Since, M/s. Alankar Marble Tiles could not repay its loan, proceedings were initiated by the Corporation under the provisions of the Act of 1951 and as a result whereof, a certificate dated 3.8.1995, came to be issued by the Corporation. The Corporation certified that it has sold the assets of M/s. Alankar Marble Tiles to the petitioner for Rs.7,61,111/- vide sale letter dated 31.2.1995. The certificate, also certifies that the petitioner has paid the sale price of Rs.7,61,111/- with the interest and other dues to the Corporation on 26.5.1995.
13. After the issuance of the certificate, a sale deed dated 21.8.1995 came to be executed between the Corporation on one hand and the petitioner on the other. As per the recitals, in the sale deed, the vendor became entitled to take over the possession of the mortgaged properties and to transfer the said properties of the industrial concern pursuant to the provisions of section 29 of the Act of 1951. Further the sale deed was registered with the office of Sub-
Page 16 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 Registrar, Muli; therefore, clearly, the petitioner had acquired the ownership over the land in question by virtue of the provisions of the Act of 1951. As is discernible from the record, the Corporation applied for mutation of the entry and kachha entry no.1187 was posted in the revenue record; in absence of the notice, the same was cancelled. Thereafter, it appears that no steps were taken by the petitioner either challenging the order dated 31.12.2003 of the Circle Officer or for mutation of the entry in its favour after following the due process. Be that as it may.
14. In the interregnum, Dharamshibhai Devabhai passed away and an application came to be filed in the year 2014 by the heirs for recording heirship in the revenue record and as a result whereof entry no.1739 dated 25.6.2014 was posted recording the names of private respondents as the heirs of Dharamshibhai Devabhai and Ambabhai Devabhai. The petitioner, had made a representation in the year 2013; however, as discussed hereinabove, no decision was taken and thereafter, the petitioner filed another representation dated 5.3.2015, again to no avail. The petitioner, therefore, challenged the order dated 7.3.1989 of the Assistant Collector before the Collector who, did not interfere with the order and while doing so, remanded the matter to the District Development Officer to decide the same, after verifying the record and hearing the parties.
15. Pertinently, there was an order passed by the Assistant Collector whereby, the matter was remanded; however, as has been declared before this Court by the Taluka Development Officer, no decision was taken. The matter remained undecided and that is how, another order of the Collector dated 5.12.2015 is in place directing the District Development Officer to decide the matter; however, nothing has been placed on record that during the span of Page 17 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 two years, that is prior to the filing of writ petition any decision has been taken by the District Development Officer. This Court, required the learned advocate appearing for the Taluka Development Officer to place it on record as to whether any steps have been taken or not. It has been reported by Mr H.S. Munshaw, learned advocate that nothing was done after the order dated 7.3.1989 of the Assistant Collector so also after the order dated 5.12.2015 of the Collector. It has been brought on the record that now, the powers for deciding the N.A. application, have been transferred to the Collector and therefore, neither the Taluka Development Officer nor the District Development Officer now have any jurisdiction to decide the N.A. application.
16. From the aforesaid factual narration, it is clear that the N.A. permission was granted vide order dated 12.5.1986 whereas, the decision cancelling the N.A. permission, has been taken on 7.3.1989 that would be almost close to three years. At this stage, the judgments relied upon by the learned senior counsel appearing for the petitioner are worth referring to.
17. In the case of State of Gujarat v. Patel Raghav Natha (supra), the issue pertained to the permission under section 65 of the Code and the issue was also as to whether the Commissioner can revise an order made under section 65 of the Code at any time. The Apex Court, while considering the provisions of section 65 vis-a-vis the provisions of section 211, held and observed that the provisions of section 65, clearly provide that the 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. The Apex Court further observed that reading sections 211 and 65 together, it is incumbent upon the Commissioner, that it should exercise the Page 18 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 powers within a few months of the order of the Collector which would be a reasonable time because after the grant of 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. The Apex Court, after discussing the facts and the provisions, when found that the order, was passed beyond one year, it observed that the order, was passed too late. Relevant paragraphs 12 and 13, read thus:
"[12] The question arises whether the Commissioner can revise an order made under sec. 65 at any time. It is true that there is no period of limitation prescribed under sec. 211, but it Secms 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 sec. 65 itself indicates the length of the reasonable time within which the Commissioner must act under, sec. 211. Under sec. 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 Secs. 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."
18. In the case of Bipinchandra G. Dalal v. State of Gujarat (supra), the facts were to the effect that the petitioner made an application on 16.8.1982 for N.A. permission which was granted on 6.11.1982; however, the show cause notice, was issued somewhere in the month of May 1984. While referring to the judgment of the Apex Court in the case of State of Gujarat v. Patel Raghav Natha Page 19 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 (supra) this Court, was of the opinion that exercise of revisional power by the Secretary was after the expiry of the reasonable period as enunciated by the Apex Court. This Court, quashed and set aside the order of the Secretary it having been passed beyond reasonable time.
19. Similarly, in the case of Vaghri Jivandas Manji v. State of Gujarat (supra), the action of the respondent authorities, was quashed and set aside as the notice, was issued after a span of 13 months. In the aforestated case, the application was made in the month of July 2006 which was granted vide order dated September 2006. Notice calling upon the petitioner therein to explain as to why the N.A. permission should not be cancelled was issued on 9.10.2007 followed by order dated 10.1.2008. This Court, as aforestated, while quashing and setting aside the order, held and observed that the show cause notice, has been issued after a period of 13 months from the date of passing of the order of grant of N.A. permission and that such action would be contrary to the provisions of law laid down by various judgments of this Court as well as of the Apex Court. Similar is the principle laid down by this Court in the cases of Rajesh Vitthalbhai Patel v. Special Secretary (Appeals) (supra) as well as Satyambhai Keshavlal Patel v. State of Gujarat (supra).
20. It is well established principle of law that if the statute does not provide for limitation to exercise the powers, it does not mean that it can be exercised at any point of time. In the present case, at the cost of repetition, it is required to be noted that the order granting N.A. permission was dated 12.5.1986 whereas, the proceedings were initiated and the said order was quashed vide order dated 7.3.1989 by the Assistant Collector, that would be close to 3 years and in the opinion of this Court, the said order passed Page 20 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 would be beyond reasonable time, as in the interregnum, not only development took place, equities got created in favour of third party.
21. One more aspect, deserves to be discussed at this stage. The Assistant Collector, has passed an order dated 7.3.1989 since it found that there is a discrepancy in the procedure adopted by the Taluka Development Officer and remanded the matter to the Taluka Development Officer to take a decision after obtaining the necessary opinions and approval of the Executive Committee. In furtherance of the directions contained in the order dated 7.3.1989, no steps were taken by the Taluka Development Officer. When the revision was filed before the Collector challenging the order dated 7.3.1989, the Collector instead of deciding the issue, confirmed the order and remanded the matter to District Development Officer as the jurisdiction for taking a decision on N.A. application by that time was conferred upon the District Development Officer. Even the District Development Officer, till the petition was filed or thereafter, has not taken any decision. Therefore, the fact remains that from the year 1989 till the petition has been filed, no decision has been taken on the N.A. application.
22. The development which took place in the interregnum, is required to be noted. After the conversion of the land in question, the brothers - original owners have executed a registered sale deed in favour of M/s. Alankar Marble Tiles on 13.6.1986. Some of the recitals of the sale deed are worth referring to, as it makes a reference of N.A. permission dated 12.5.1986 converting the land from agriculture to non agriculture purpose. Condition in vernacular, free english translation whereof, would be the brothers - original owners or their heirs shall have no right to raise any objection or dispute and all the rights over the land, stand in favour of the Page 21 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 purchaser. It also states that the possession of the land in question, has been handed over to M/s. Alankar Marble Tiles. The sale deed further records that the names of brothers - original owners would be deleted from the government record and M/s. Alankar Marble Tiles will be entitled to get its name mutated in the revenue record and that the brothers - original owners shall extend their cooperation. The sale deed also states about the consideration which has been received by the brothers - original owners including respondent no.6.5 i.e. Kadvabhai Dharamshibhai as well as respondent no.6.1 i.e. Rajabhai Dharamshibhai - sons of brothers - original owners who have also consented to the sale. Not only this, the respondent no.6.1 as well as respondent no.6.5, they are very much party to the sale deed. Respondent no.6.1, is a signatory to the sale deed; whereas, respondent no.6.5 has put his thumb impression. In view of the sale deed, it would be impermissible to the vendor or the heir to turn around and challenge or object the right of the petitioner over the land in question.
23. Apart from the aforesaid, M/s. Alankar Marble Tiles could not repay its loan and the land having been mortgaged with the Corporation, it in exercise of the powers conferred under section 20 and 29 of the Act of 1951, initiated the auction proceedings and as a result whereof, it issued the certificate dated 3.8.1995 certifying that it has sold the assets of M/s. Alankar Marble Tiles being land, building and Plant & machinery to the petitioner for the consideration of Rs.7,61,111/-. The certificate also certifies that the petitioner has paid the sale price of Rs.7,61,111/- together with interest and other dues on 26.5.1995. Therefore, clearly, the land has been purchased by the petitioner in the auction proceedings conducted by the Corporation. There is no dispute that any amount is outstanding by the petitioner or that the procedure, conducted by the Corporation has not attained finality.
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24. After the issuance of the certificate, the Corporation, executed a sale deed dated 21.8.1995 in favour of the petitioner. Reference of some of the recitals in the sale deed, is necessitated at this stage. Condition (2) in the sale deed, states that, "the PURCHASER shall get the same title, right and interest as the INDUSTRIAL CONCERN possessed in respect of the properties subject matter of sale and shall enjoy the said uninterrupted by the vendor and/or by any other person claiming through by or under the said parties."
Condition (5) in the sale deed further states that the vendor has handed over the title deeds to the purchaser i.e. original Register Sale-Deed dt.13.6.86 executed by Dharamsinh Deva & Amba Deva in favour of Ms Alankar Marbles & Tiles Pvt. Ltd. Therefore, whatever rights were incurred in favour of M/s. Alankar Marble Tiles have come in favour of the petitioner in view of the registered sale deed executed by the Corporation. Condition nos.2, 3, 4 and 5 of the sale deed executed by the Corporation in favour of the petitioner, read thus:
"(2) The PURCHASER shall get the same title, right and interest as the INDUSTRIAL CONCERN possessed in respect of the properties subject matter of sale and shall enjoy the said uninterrupted by the vendor and/or by any other person claiming through by or under the said parties.
(3) The total sale consideration of Rs. 2,50,000/- (Rupees Two Lacs Fifty Thousand only).
Being received by the Vendor, the charge created on the properties (subject matter of sale) in favour of the VENDOR stand discharged and cancelled on execution of this SALE- DEED in favour of the PURCHASER.
(4) The VENDOR confirm and declare that the charge created by deposit of title deeds in respect of the properties of the INDUSTRIAL CONCERN stands satisfied and discharge and the properties thereof are sold without any encumbrance and/or charge if the VENDOR.
(5) The VENDOR has handed over the title deeds as under
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C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022
to the PURCHASER:
1) Original Register Sale-Deed dt.13.6.86 executed by Dharamsinh Deva & Amba Deva in favour of Ms Alankar Marbles & Tiles Pvt. Ltd. in respect of S.No.90(Part) at Bamanbore, Taluka: Chotila, District:Surendranagar which has been registered with the Sub-Registrar MULI under its Registration No:615 dt:20.6.86.
2) Certified true copy of order Dt. 12.5.86 of T.D.O. Chotila, granting permission of N.A. of s. no.90(PART)
3) Certified copy of Village form No:7/12.
4) Approved Plan."
25. Though it is true that the Corporation took some steps for mutation of the name in the revenue record; however, the same was not certified on the ground of non-issuance of the notice. However, the fact remains that the land in question, had come in favour of the petitioner, vide registered sale deed in exercise of the statutory powers under the provisions of the Act of 1951, that too by the statutory body.
26. Pertinently, the certificate dated 3.8.1995 so also the sale deed dated 21.8.1995 issued and executed by the Corporation in favour of the petitioner, have not been challenged by the private respondents before any forum and therefore, the locus of the private respondents is to be considered as well. The private respondents, having executed the registered sale deed in favour of M/s. Alankar Marble Tiles, in the opinion of this Court, it would be impermissible for the private respondents to turn around and raise any objection with respect to the land in question.
27. Perceptibly, the order dated 7.3.1989, was passed by the Assistant Collector and no steps were taken and in the interregnum, the equities can stated to have been created in favour of the petitioner inasmuch as, the petitioner had purchased the land in question as aforestated in the auction proceeding by the Page 24 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022 C/SCA/2007/2017 JUDGMENT DATED: 28/06/2022 Corporation and thereafter, has not only invested a huge amount but has also expanded the production of the unit; employing sizable number of workers/laborers from the surrounding rural areas and after almost lapse of more than five decades, to unsettle the things would severely prejudice the petitioner.
28. In the present case, the powers have been exercised close to three years and even thereafter, till the year 2015, no steps were taken and even thereafter, for another two years, no decision has been taken. Therefore, in the opinion of this Court, the action of the authorities, is tainted with delay and laches and beyond reasonable period which cannot be countenanced and deserves to be quashed and set aside. Accordingly, the order dated 5.12.2015, passed by the Collector and the order dated 7.3.1989 passed by the Assistant Collector are hereby quashed and set aside.
29. Petition succeeds and is accordingly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
30. So far as prayer (B), seeking direction to the the revenue authorities to enter the name of the petitioner in the revenue record is concerned, it will be open to the petitioner to apply before the respondent authorities concerned and the authorities are directed to take decision in accordance with law and in terms of the present judgment.
Sd/-
(SANGEETA K. VISHEN,J) RAVI P. PATEL Page 25 of 25 Downloaded on : Sat Dec 24 20:00:09 IST 2022