Gujarat High Court
Manubhai Kishorbhai Agrawal vs State Of Gujarat on 10 September, 2018
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/17566/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17566 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Sd/-
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ? No
2 To be referred to the Reporter or not ?
No
3 Whether their Lordships wish to see the fair
copy of the judgment ? No
4 Whether this case involves a substantial
question of law as to the interpretation of
the Constitution of India or any order made No
thereunder ?
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MANUBHAI KISHORBHAI AGRAWAL
Versus
STATE OF GUJARAT
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Appearance:
MR SHITAL R PATEL(2166) for the PETITIONER(s) No. 1
MR. ALKESH N SHAH(3749) for the PETITIONER(s) No. 1
DS AFF.NOT FILED (R)(71) for the RESPONDENT(s) No. 1
RULE SERVED BY DS(65) for the RESPONDENT(s) No. 2
MR MANAN MEHTA, AGP for the RESPONDENT No.1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 10/09/2018
ORAL JUDGMENT
1. Present petition is filed by the petitioner under Articles 14, 226 and 227 of the Constitution of India as well as under the provisions of Gujarat Land Revenue Code, 1879, for the prayers as prayed for inter alia appropriate writ, Page 1 of 10 C/SCA/17566/2016 JUDGMENT order or direction may be issued quashing and setting aside the order passed in RTS Revision Application No.MVV/HKP/CHOTU/6/2015 by the Secretary(Appeals), Revenue Department, dated 22.09.2016/30.09.2016 at Annexure-A and also the order passed in RTS Suo motu Revision Case No.1/2014/Vashi 1096/2015 by respondent No.2-Collector, Chhotaudepur, dated 16.03.2015 at Annexure-I on the ground stated in the memo of petition.
2. The facts of case briefly summarized are as follows:
2.1. The land bearing survey No.233 of Mauje Modasar, Taluka Bodeli, District: Chhotaudepur originally belonged to one Bachiben Sukhabhai, from whom the petitioner purchased the said land by two registered sale deeds dated 27.05.1991 and 13.08.1991, on the basis of which entry was made and it was certified, which is produced at Annexure-B and thereafter, the NA permission came to be granted by TDO, Sankheda vide order dated 27.10.1994. Thereafter the NA permission was granted, the mutation entry No.1331 was entered in village form No.6 on 28.10.1994 which was certified on 25.04.1995 and thereafter, the land ceased to be an agricultural land and the development permission was also granted and construction of factory was put up after the approval of the plans. However, after such a long lapse of time in exercise of suo-motu powers of revision under Rule 108(6) of the Gujarat Land Revenue Rules by registering RTS/Suo Motu Case No.273/2011,were initiated after the show cause notice and the order passed by the Collector, Page 2 of 10 C/SCA/17566/2016 JUDGMENT Chhotaudepur, at Annexure-F cancelling the entry No.1713.
Thereafter the show cause notice dated 01.12.2014 also came to be issued that entry No.1255 of 1991 is not inconsonance with the provisions of Bombay Land Revenue Code and Rules and as the petitioner was not an agriculturist, he was called upon by show cause notice as to why the entry should not be cancelled and therefore, the present petition has been filed on the ground of exercise of suo-motu powers beyond a reasonable period and the fact that after the grant of permission under Section 65 of the Bombay Land Revenue Code for non agricultural land, the proceedings under the Tenancy Act would not be permissible.
3. Heard learned advocate Shri Shital R. Patel for the petitioner and learned AGP Shri Manan Mehta for respondent No.1-State.
4. Learned advocate Shri Shital R. Patel for the petitioner referred to the background of the facts and submitted that after a long lapse of period about 23 years, the entry no.1255 of 1991 is sought to be cancelled for which the show cause notice came to be issued dated 01.12.2014 by the Collector, Chhotaudepur, which is produced at Annexure-G. He submitted that similarly the order at Annexure-F came to be passed in Suo-motu Case No.273/2011 in respect of subsequent entry. He, therefore, submitted that it was carried by way of Revision Application No. MVV/HKP/CHOTU/6/2015 before the Secretary (Appeals), Revenue Department, State of Gujarat and the order Page 3 of 10 C/SCA/17566/2016 JUDGMENT came to be passed dated 30.09.2016 at Annexure-A, which is challenged. He has also submitted that the fact that NA permission has been granted in the year 1995 and thereafter, the development has taken place, which itself would suggest that the provisions of the Tenancy Act would not be attracted. He submitted that this aspect has not been considered. He submitted that after the NA permission was granted by TDO, Sankheda on 27.10.1994, the necessary entry was mutated and thereafter, the development has taken place, which has not been considered. He submitted that the policy of the Government has to be followed consistently and such notice and the subsequent orders are contrary to their own policy. Learned Advocate Shri Patel submitted that reference to Section 135(D) by SSRD is misconceived as it cannot have any retrospective application. He referred to the order at Annexure-A passed by Secretary (Appeals) and submitted that it is mechanically without considering relevant material. He submitted that the order, which has been relied upon in Special Civil Application No.13443 of 2009 has been set aside in Letters Patent Appeal No.422 of 2010 and therefore, the present petition may be allowed. He submitted that the Hon'ble Division Bench in Letters Patent Appeal No.422 of 2010 and allied matters has considered the same issue regarding exercise of suo-motu powers beyond a reasonable period relying upon the earlier judgment of the Hon'ble Supreme Court in case of State of Gujarat V/s. Patel Raghav Natha, reported in AIR 1969 SC 1279 and also relying upon the judgment of the Hon'ble Page 4 of 10 C/SCA/17566/2016 JUDGMENT Division Bench of this Court in case of Chandulal Gordhandas Ranodriya & Ors. V/s. State of Gujarat, reported in 2013 (2) GLR 1788. Similarly, he has also referred to the order passed by the Hon'ble Division Bench in a judgment reported in case of Bhanji Devshibhai Luhar V/s. State of Gujarat, reported in 2011 (2) GLR 1676 and submitted that the transactions, which have taken place cannot be set at naught after such a long period. He, therefore, submitted that the present petition may be allowed.
5. Learned AGP Shri Manan Mehta referred to the papers and tried to submit that in exercise of suo-motu powers of revision, the Collector has issued a show cause notice when the entry no.1255 dated 06.09.1991 was found to be in breach of the provisions of the Tenancy Act. He submitted that the land in question is an agricultural land where the factory has been set up and the person like petitioner was not an agriculturist at the relevant point of time when he purchased the agriculture land. He, therefore, submitted that when the transaction is in violation of statutory provisions, it would be void and therefore, it can be examined. For that he has referred to Rule 106 and also the provisions of Section 73AA and submitted that it can be considered in a review. He submitted that any such transaction or transfer of the land would not be consistent with the purpose and the object of the act for which the restriction has been imposed. He submitted that the restriction on transfer of agricultural land in favour of the non-agriculturists has been imposed to see that Page 5 of 10 C/SCA/17566/2016 JUDGMENT they are not exploited and the land is not taken away. He, therefore, submitted that once the order is void when the provisions of the Land Revenue Code provide for such powers, it cannot be said that it is bad. He, however, submitted that what could be considered as a reasonable period will depend upon the facts of the case.
6. In view of the rival submissions, it is required to be considered whether the present petition deserves consideration.
7. As could be seen from the background of the facts, it is not in dispute that in exercise of suo-motu powers under revision Rule 108(6) of the Gujarat Land Revenue Code, show cause notice has been issued by the Collector, Chhotaudepur dated 01.12.2014 for cancellation of entry No.1225 in the year 1991. Further, the order at Annexure-F, which is also for subsequent entry made, has also been passed in exercise of suo-motu powers. Before I refer to the further details, the order at Annexure-F requires to be examined where while referring to the provision of Rule 108(6) of the Gujarat Land Revenue Rules. It has been observed that the names of the brothers have been mutated and they cannot be said to be the heirs with specific details that after the death of Maheshbhai, their sons, daughter could have been mutated, but not the other brothers. This appears to be misconception as admittedly that the land in question was purchased by Manubhai and the co-laterals or the names of his heirs could be mutated Page 6 of 10 C/SCA/17566/2016 JUDGMENT or entered into record. Therefore, the moot question, which would arise with regard to exercise of suo-motu powers beyond a reasonable period, the Hon'ble Apex Court in catena of judicial pronouncements has not approved of such powers belatedly referring the judgment in case of State of Gujarat V/s. Patel Raghav Natha, reported in AIR 1969 SC 1279. Similarly, the judgment of the Hon'ble Division Bench in case of Chandulal Gordhandas Ranodriya (supra) has considered the same issue of suo-motu powers where the transaction is in breach of Section 43 of the Tenancy Act. In the facts of the case, with passage of time the authorities have granted NA permission on the basis of which the entries have been mutated. As stated above, thereafter, the development has taken place and therefore, it is too late now in the light of day to question about the first transaction or the entry in the year 1991 regarding purchase of the land by the petitioner on the ground that at the relevant point of time the petitioner was not an agriculturist. As observed in the aforesaid judgment of the Hon'ble Division Bench in case of Chandulal Gordhandas Ranodriya (supra) that:
"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."
The distinction has been made with reference to Section 43 and 84(C) of the Tenancy Act. As stated above, in the facts of the case, the NA permission has been granted by the Competent Page 7 of 10 C/SCA/17566/2016 JUDGMENT Authority and thereafter, the development has taken place. Therefore, as rightly submitted once the NA permission has been granted changing the tenure and nature of the land, the provisions of the Tenancy Act would not be attracted at all as per the policy of the Government. Therefore, when the permission has been granted recording the change in the tenure of the land removing the restriction on the use and the nature of use, it could not have been questioned belatedly by issuance of show cause notice dated 01.12.2014 at Annexure-G. Not only that the subsequent transactions which have been again questioned and the order passed at Annexure-F also cannot be sustained. As rightly submitted by learned advocate for the petitioner that the term "reasonable period" has to be examined in light of the judgment of the Hon'ble Apex Court as well as the judgment of the Hon'ble Division Bench of this Court. Therefore, what could be said to be a reasonable period has to be considered. This Court has observed in case of Vijayrajsinhji Virbhadrasinhji Gohil & Anr. V/s. State of Gujarat & Ors., reported in 2015 (1) GLR 444 that:
"Again according to the Advanced Law Lexicon by P. Ramanatha Aiyer, 3rd Edn. 2005, 'reasonable time' has been discussed and it has been clearly observed :
"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer."
"Reasonable time" is defined to be 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."
(Emphasis supplied) Page 8 of 10 C/SCA/17566/2016 JUDGMENT Therefore, reasonable time always depends on the facts and circumstances of the case. In the circumstances of the present case, the period of 23 years cannot be said to be a reasonable period for exercise of suo-motu powers under the Gujarat Land Revenue Code to recall and verify the entry No.1255 made in 1991 that such transaction was hit by the provisions of the statute like the Tenancy Act and the land Revenue Code that the person like petitioner was not agriculturist. It has been observed and quoted by the Hon'ble Division Bench in case of Chandulal Gordhandas Ranodriya (supra) that:
"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 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."
8. Therefore, having regard to these observations as well as similar issue considered with reference to the Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance, 1940 and by another judgment of the Hon'ble Division Bench in case of Bhanji Devshibhai Luhar (supra), such exercise of powers would not be justified.
In the facts of the case as stated above, much water has Page 9 of 10 C/SCA/17566/2016 JUDGMENT flown with passage of time inasmuch as NA permission has been granted and thereafter, the development has taken place and therefore, such exercise of powers would not be justified at belated stage.
9. Therefore, apart from the other details and the issue involved in the matter, both the orders at Annexure-A and Annexure-I are hereby quashed and set aside. Rule is made absolute. No order as to costs.
Sd/-
(RAJESH H.SHUKLA, J.) ABHISHEK Page 10 of 10