Gujarat High Court
Patel Rameshbhai Parshottambhai vs State Of Gujarat on 18 February, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/12067/2018 ORDER DATED: 18/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12067 of 2018
==========================================================
PATEL RAMESHBHAI PARSHOTTAMBHAI
Versus
STATE OF GUJARAT & 6 other(s)
==========================================================
Appearance:
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 4,5,6,7
MS ASMITA PATEL, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
==========================================================
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 18/02/2022
ORAL ORDER
1. By this petition under Article 226 of the Constitution of India, the petitioner is aggrieved by two orders i.e. dated 22.05.2014 passed by the District Collector in Revision Application being RTS/ Suo-Moto/ Revision 110 of 2013 as well as order dated 30.06.2018 passed by the respondent- Special Secretary, Revenue Department (Appeals) (hereinafter referred to as "the learned SSRD") in MVV/ HKP/PTN/ 41 of 2014. The dispute, revolves around survey no. 462/4 (hereinafter referred to as "the land in question"). The petitioner, applied for non-agricultural purpose somewhere in the year 2013 which, came to be rejected vide order dated 10.09.2013 passed by the Prant Officer. The NA proceedings, gave rise to the suo-moto proceedings initiated by the Collector with respect to the entry no. 7230 posted in the revenue record on 30.06.1983.
2. The facts, not in dispute, are:
2.1. As per the promulgation entry no. 868, Vaghari Page 1 of 12 Downloaded on : Sat Dec 24 11:18:05 IST 2022 C/SCA/12067/2018 ORDER DATED: 18/02/2022 Bhaychandbhai Gokalbhai was the original owner of survey no. 462 paiki 1 and after his death the heirship entry no. 5823 was posted in the revenue record followed by the entry no. 5824 where, the sisters relinquished their rights. According to the entry no. 5858, the land bearing survey no. 462 was divided into four parts i.e. 462/1, 462/2, 462/3 and 462/4, as per the area indicated in the entry no. 5858. Vide entry no. 7230 dated 30.06.1983, the land in question i.e. 462/4 came to the share of Vaghari Haribhai Jagubhai by way of family arrangement which, after following the procedure as contained in the provisions of Section 135C was certified on 12.11.1987. Upon demise of the Shri Haribhai Jagubhai on 11.08.1991, heirship entry no. 8967 came to be mutated on 05.06.1992 and which also, was certified followed by entry no.
8968 whereby, the daughter of Haribhai Jagubhai relinquished her right. The said entry was also certified by the Mamlatdar somewhere in the month of December, 1992.
2.2. The petitioner, after taking the due care and caution and verifying the revenue record purchased the land in question vide the registered sale deed dated 07.07.2006, bearing registration no. 546 and pursuant whereof the entry no. 13812 was posted in the revenue record on 31.08.2006 and certified on 07.10.2006. Since the petitioner was desirous of using the land for non-agricultural purpose, applied for NA Permission qua the land in question. However, the application was rejected vide order dated 10.09.2013 by the Prant Officer.
2.3. As a result of the process of NA application the Mamlatdar submitted the report/proposal dated 30.09.2013 to the office of the Mamlatdar proposing to or recommending of taking entry no. 7230 in review which culminated into RTS/suo moto/ revision no. 110 of Page 2 of 12 Downloaded on : Sat Dec 24 11:18:05 IST 2022 C/SCA/12067/2018 ORDER DATED: 18/02/2022 2013.
2.4. The District Collector after hearing the parties, passed an order dated 22.05.2014 canceling the entry no. 7230 dated 30.06.1983 and all the consequential entry nos. 8967 dated 05.06.1992 and entry no. 13812 dated 31.08.2006. The basis on which the entries were canceled was that the partition was against the provisions of the Registration Act inasmuch as, in the cases other than the transfer in favour of the legal heirs, registered document is necessary. By citing the said ground, as aforesaid, the entry no. 7230 was treated as null and void and was canceled with all the consequential entries as stated hereinabove. The petitioner being aggrieved, preferred a Revision Application before the learned SSRD, which, rejected the same and the order of the Collector, has been confirmed. Being aggrieved, the present writ petition with the aforementioned prayers.
3. Mr. Nishit Gandhi, learned Advocate appearing for the petitioner taking this Court to the entry no. 868 dated 22.02.1954 submitted that the land belonged to one Vaghari Bhaychandbhai Gokalbhai who was Kheduth Khatedar. It is submitted that after the death of Vaghari Bhaychandbhai Gokalbhai the names of his heirs were mutated vide entry no. 5823 with respect to the land in question followed by relinquishment of the right by sisters vide entry no. 5824. It is submitted that survey no. 462, was divided into four parts vide entry no. 5858 dated 18.08.1977 which was also certified on 31.01.1978. That what is relevant, for the present purpose, is entry no. 7230 which was posted in the revenue record on 30.06.1983 whereby as a result of the partition amongst the family members, the land in question i.e. 462/4 had come to the share of Vaghari Haribhai Jagubhai and was certified on Page 3 of 12 Downloaded on : Sat Dec 24 11:18:05 IST 2022 C/SCA/12067/2018 ORDER DATED: 18/02/2022 12.11.1987. After the death of Vaghari Haribhai Jagubhai on 11.08.1991, the names of his heirs were also mutated, which was recorded vide entry no. 8967 followed by the relinquishment of right by the daughter vide entry no. 8968. It is submitted that the entries were certified by the authorities, and were very much within their knowledge, however, no objection was ever raised against the entries or for that matter the transaction amongst the family members.
3.1. It is submitted that the petitioner, after verifying the revenue record, purchased the land from Lilabai Haribhai the owner of the land in question vide registered sale deed bearing no. 546 dated 07.07.2006 and as a result whereof the entry no. 13812 was mutated in the revenue record on 31.08.2006 certified on 07.10.2006 without raising any objection for the purported breach of the Registration Act and/or the partition not being in consonance of the concerned Act. The petitioner applied for NA permission which, was rejected vide order dated 10.09.2013. It is submitted that the application of the NA permission resulted into cancellation of not only the entry no. 13812 in favour of the petitioner but also entry no. 7230 dated 30.06.1983 and all the consequential entries posted from time to time.
4. It is submitted that probably the Mamlatdar has sent a proposal dated 30.09.2013, for taking the entry no. 7230 dated 30.06.1983 in suo-moto revision and as per the proposal, the Collector initiated the suo-moto proceedings by issuing the notice which, contained only the entry no. 7230. It is submitted that such action of initiation of the suo-moto proceedings is barred by delay and laches inasmuch as, the proceedings have been initiated almost after a period of thirty years from the date of the mutation of the Page 4 of 12 Downloaded on : Sat Dec 24 11:18:05 IST 2022 C/SCA/12067/2018 ORDER DATED: 18/02/2022 entry in the year 1983. It is submitted that the petitioner being aggrieved, against the order, preferred a Revision Application before the learned SSRD, raising all the contentions including the contention of delay and in support of such contentions, judgment were also cited of this Hon'ble Court as well as the Supreme Court whereby, it has been held and observed that when no time is prescribed in the statute for exercise of powers, it does not mean that the powers can be exercised at any time and such powers have to be exercised within reasonable period. The learned SSRD, disregarding the contentions of the petitioner, so also the judgments, passed the order dated 30.06.2018 rejecting the Revision Application and confirmed the order dated 22.05.2014 of the Collector. A bare perusal of the order of the learned SSRD, clearly suggests that the reasonings of the learned SSRD are verbatim same, as noted by the Deputy Collector in its order dated 22.05.2014. It is therefore submitted that the order not only suffers from the vice of delay and laches but also suffers non-application of mind on the part of the learned SSRD. It is submitted that what was taken in suo-moto revision, was entry no. 7230 dated 30.06.1983; however, while canceling the said entry, other entries have also been canceled. It is submitted that such cancelation of the subsequent entries would go beyond the show cause notice as the show cause notice was limited to entry no. 7230. It is submitted that therefore also, the orders are illegal and bad in law.
5. Mr. Nishit Gandhi, learned Advocate submitted that therefore, both the orders dated 22.05.2014 passed by the Collector and the order dated 30.06.2018 passed by the learned SSRD are bad in law on the grounds namely: that the proceedings are initiated beyond reasonable time i.e. after a delay of more than Page 5 of 12 Downloaded on : Sat Dec 24 11:18:05 IST 2022 C/SCA/12067/2018 ORDER DATED: 18/02/2022 thirty years which would be impermissible; that the petitioner was a bonafide purchaser and had purchased the land vide the registered sale deed and as a result whereof entry no. 13812 was mutated in the revenue record followed by the certification; that the entry no. 7230, was on the basis of the family arrangement and the family members neither have raised any objection to the entry no. 7230 nor execution of the registered sale deed in favor of the petitioner; that the registered sale deed has not been challenged by any of the parties before any Court of law.
6. In support of the contention, that it would be impermissible for the respondent authorities to initiate the proceedings beyond reasonable period, reliance has been placed on the judgment in the case of Mohammad Kavi Mohammad Amin vs. Fatmabai Ibrahim reported in (1997) 6 SCC 71. It is submitted that the Apex Court while dealing with the provisions under Section 84C of the Act has held and observed that when no time limit is prescribed for exercise of powers under the statute it does not mean that it can be exercised at any time and such powers have to be exercised within reasonable period. It is submitted that in the said case, the transfer took place somewhere in the year 1972 whereas the suo-moto inquiry was initiated by the Mamlatdar in the year 1973 and the sale deed were declared to be invalid. It is submitted that the Apex Court, while referring to the judgment in the case of State of Gujarat vs. Patil Raghav Natha reported in (1969) 2 SCC 187 and in the case of Ram Chand vs. Union of India reported in (1994) 1 SCC 44, held and observed that where no time limit is prescribed for exercise of powers under a statute, it does not mean that such powers can be exercised at any time, such powers have to be exercised within a reasonable time. It is therefore submitted that exercise of powers beyond reasonable time, such issue is no longer Page 6 of 12 Downloaded on : Sat Dec 24 11:18:05 IST 2022 C/SCA/12067/2018 ORDER DATED: 18/02/2022 res intergra. It is therefore urged that the orders deserve to be quashed and set aside being illegal and bad in law.
7. Ms. Asmita Patel, learned Assistant Government Pleader, on the other hand has submitted that no error has been committed either by the Collector in passing the order dated 22.05.2014 so also the order dated 30.06.2018 by the learned SSRD. It is submitted that apart from the delay, the entry no. 7230, which was posted in the revenue record in the year 1983, was on the basis of the partition. However, by the said entry the land had not been given in the favour of legal heirs of Bhaychandbhai Gokalbhai but in favour of the Haribhai Jagubhai, who is not the Class-1 heir of the Bhaychandbhai Gokalbhai. It is therefore submitted that when the entry itself is null and, void it can be taken in suo moto revision at any point of time and delay would not be an impediment in initiating the suo-moto proceedings. It is submitted that since the transfer was not in favour of the Class-1 legal heir, the document ought to have been registered, and in absence thereof it cannot be said to be legal and valid. Therefore, the Collector was well within his right to have initiated the suo-moto proceedings taking the entry no. 7230 in revision. It is submitted that both the orders, are in consonance with the provisions of the Code and therefore no interference is warranted and the petition deserves to be dismissed.
8. Heard the learned Advocates appearing for the respective parties and perused and considered the documents available on record.
9. The facts, have been discussed in detail in the preceding paragraphs however, the facts which are relevant for the present Page 7 of 12 Downloaded on : Sat Dec 24 11:18:05 IST 2022 C/SCA/12067/2018 ORDER DATED: 18/02/2022 purpose are to the effect that vide entry no. 7230 dated 30.06.1983 land in question i.e. survey no. 462/4 came in favour of Haribhai Jagubhai, on the basis of the partition deed. The entry was mutated and was certified after following the due procedure under the provisions of the Code of 1879 on 12.11.1983. After the death of Haribhai Jagubhai on 11.08.1991, entry no. 8967 dated 05.06.1992 was mutated, followed by certification. Further, the daughter of Haribhai Jagubhai relinquished her right vide entry no. 8968 which entry, was also mutated and certified by the Mamlatdar after following the procedure. Therefore, the entry nos. 7320, 8967 and 8968 were very much within the knowledge of the revenue authorities inasmuch as, the entries were posted in the village form no. 6 and certified by the Mamlatdar. However, the said entry was never taken in suo-moto revision or challenged before the higher authority. Thereafter, the petitioner, had purchased the land in the year 2006 vide registered sale deed bearing no. 546 dated 07.07.2006 and as a result whereof the entry no. 13812 was posted in the village form no. 6 on 31.08.2006. After issuing the necessary notice under section 135D and following the procedure of the Code of 1897, the said entry, came to be certified on 07.10.2006. No steps or action were taken by the authorities concerned either canceling entry no. 13812 or taking into suo-moto. It is nobody's case that the entries were posted in the revenue record without observing the provisions of the Code of 1879. If at all, the respondent authorities were of the opinion that the entry no. 7230 dated 30.06.1983 was in contravention to the provisions of the Registration Act or the Code of 1879, it was expected of the authorities concerned to have initiated the proceedings within the reasonable time.
10. Perceptibly, the petitioner purchased the land in the year Page 8 of 12 Downloaded on : Sat Dec 24 11:18:05 IST 2022 C/SCA/12067/2018 ORDER DATED: 18/02/2022 2006 but no action was taken. The petitioner was, desirous of conversion of the land, from agriculture to non-agricultural and hence, he made an application which was rejected by the Prant Officer vide order dated 10.09.2013. It appears that the Mamlatdar had submitted a proposal date 30.09.2013 and as a result whereof, the notice dated 22.11.2013 was issued. The said notice has been placed on record by the learned Advocate appearing for the petitioner. Clearly, the said notice is restricted and limited to entry no. 7230 dated 03.06.1983. It records that the entry no. 7230 has been posted; despite Haribhai Jagubhai, not being the Class-1 heirs of Bhaychandbhai Gokalbhai, and the land has been partitioned, which is not in conformity with the provisions of the record of rights. The Collector initiated the suo-moto proceedings which culminated into passing of the order dated 22.05.2014.
11. The edifice, on which the order has been passed is the entry no. 7230 dated 30.06.1983 it being against the provisions of the Registration Act for, the transfer, without registration, is permissible only in the case of Class-1 heirs and in other cases, registration is must. The Collector, held that the entry no. 7230 is ab initio void and canceled the said entry so also the incidental and consequently entry no. 8967 dated 05.06.1992 and entry no. 13812 dated 31.08.2006. The said order was challenged before the learned SSRD and it verbatim accepting the reasonings given by the Collector, rejected the Revision Application and confirmed the order dated 22.05.2014. The issue, as to the powers of the revenue authorities to initiate the proceedings beyond reasonable period, is no longer res integra. The judgment in the case of Mohammad Kavi Mohammad Amin vs. Fatmabai Ibrahim (supra) relied upon by the learned Advocate appearing for the petitioner is worth referring. The Apex Court has held and observed and while referring to the Page 9 of 12 Downloaded on : Sat Dec 24 11:18:05 IST 2022 C/SCA/12067/2018 ORDER DATED: 18/02/2022 earlier judgment has reiterated the principle that where no time is prescribed for exercise of powers in the statute, it does not mean that the powers can be exercise at any time, such exercise of powers ought to be within reasonable time. In paragraph no. 2, it has been held and observed thus:
"2. Although Mr. Bhasme, learned counsel appearing for the appellant took a stand that under Section 63 of the Act aforesaid, there should not be any discrimination amongst the agriculturists with reference to the State to which such agriculturist belongs. But according to him even without going into that question the impugned order can be set aside on the ground that suo motu power has not been exercised within a reasonable time. Section 84-C of the Act does not prescribe any time for initiation of the proceeding. But in view of the settled position by several judgments of this Court that wherever a power is vested in a statutory authority without prescribing any time-limit, such power should be exercised within a reasonable time. In the present case the transfer took place as early as in the year 1972 and suo motu enquiry was started by the Mamlatdar in September 1973. If sale deeds are declared to be invalid the appellant is likely to suffer irreparable injury, because he has made investments after the aforesaid purchase. In this connection, on behalf of the appellant reliance was placed on a judgment of Justice S.B. Majmudar (as he then was in the High Court of Gujarat) in State of Gujarat v. Jethmal Bhagwandas Shah disposed of on 1-3-1990, where in connection with Section 84-C itself it was said that the power under the aforesaid section should be exercised within a reasonable time. This Court in connection with other statutory provisions, in the case of State of Gujarat v. Patil Raghav Natha and in the case of Ram Chand v. Union of India has impressed that where no time-limit is prescribed for exercise of a power under a statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time. We are satisfied that in the facts and circumstances of the present case, the suo motu power under Section 84-C of the Act was not exercised by the Mamlatdar within a reasonable time. Accordingly, the appeal is allowed. The impugned orders are set aside. No costs."
12. Moreover, the authorities concerned ought to have appreciated that after the mutation of the entry in the year 1983, the petitioner purchased the land in the year 2006 which entry also, came to be posted in the revenue record and certified on 07.10.2006. Even then, no action was taken by the office of the Page 10 of 12 Downloaded on : Sat Dec 24 11:18:05 IST 2022 C/SCA/12067/2018 ORDER DATED: 18/02/2022 Collector, and the entry remained in currency till the year 2013. Even if one is to consider the action of the Collector from the year 2006, that would be more than seven years. Initiation of the proceedings after a period of seven years would be unreasonable. Also, it is nobody's case that the said entry was in contravention to any provisions of the Code of 1879 or in breach of any provisions of the applicable Acts.
13. Evidently, entry was mutated in the year 1983 and till the year 2013 no action has been taken and therefore to initiate the proceedings, at the distance of thirty years, would be beyond reasonable time and impermissible in law. Therefore there was a fundamental error on the part of the Collector in initiating the suo- moto proceedings and passing the order dated 22.05.2014. Therefore, on this count alone the order dated 22.05.2014 passed by the Collector deserves to be quashed and set aside.
14. In the revision application, the petitioner had raised a specific contention as regards initiation of the proceedings beyond reasonable period. In support of such contention, the petitioner has also quoted the judgments; however, the learned SSRD disregarding the said principle, has simply adopted the findings recorded by the Collector and passed the order. The order also suffers from the vice of non-application of mind, inasmuch as the judgments have not been considered, so also the facts. On this count also the order of the learned SSRD deserves to be quashed and set aside.
15. It is also required to be noted that the entry no. 7230 dated 30.06.1983 has been in existence for thirty years. The family Page 11 of 12 Downloaded on : Sat Dec 24 11:18:05 IST 2022 C/SCA/12067/2018 ORDER DATED: 18/02/2022 members neither challenged the said entry nor the registered sale deed and therefore, in absence of challenge either to the entry or the sale deed, the action of the Collector canceling the entry and that too almost after thirty years would be impermissible in law and unjust. This Court, is therefore of the opinion that the order dated 22.05.2014 of the Collector and 30.06.2018 of the learned SSRD deserve to be quashed and set aside and are hereby quashed and set aside.
16. The petition is allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
(SANGEETA K. VISHEN,J) SINDHU NAIR Page 12 of 12 Downloaded on : Sat Dec 24 11:18:05 IST 2022