Gujarat High Court
Mahendrakumar Pitambarbhai Doshi vs Addl.Secretary & 2 on 12 April, 2013
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi
MAHENDRAKUMAR PITAMBARBHAI DOSHI....Petitioner(s)V/SADDL.SECRETARY C/SCA/13625/2004 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 13625 of 2004 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ============================================================== 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== MAHENDRAKUMAR PITAMBARBHAI DOSHI....Petitioner(s) Versus ADDL.SECRETARY & 2....Respondent(s) ============================================================== Appearance: MR MB PARIKH, ADVOCATE for the Petitioner(s) No. 1 MR HARSHEEL SHUKLA AGP for the Respondent(s) No. 1 - 3 ============================================================== CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 12/04/2013 ORAL JUDGMENT
1. One Mr. Mahendrakumar Pitambarbhai Doshi is before this Court praying that :
9A. Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned order at Ann.A dated 26.07.2004 passed by the present respondent no.
1 confirming the order dated 24.01.1994 passed by the Collector, Surendranagar cancelling the N.A. permission by initiating suo-motu proceeding.
2. The case of the petitioner is that the land bearing Survey No. 265 of new tenure of Village Thangadh, Taluka Chotila was given to one Jagmal Vasta by way of 'Santhani'. It is thereafter that on 16.04.1980 the said land was converted into old tenure land by an order being Order No. JMN/1293/80 by the Deputy Collector on an application given by Shri Kishorebhai Girdharbhai Sheth (predecessor-in-title of the present petitioner, as the case of the petitioner was that he had purchased this land from Shri Kishorebhai Girdharbhai Sheth). Thereafter, on 17.10.1980 the said Kishorebhai paid premium as per order bearing No. JMN/4001/80. The case of the petitioner is that since then, the land in question is non-agricultural land (as transpires from the order passed by the Collector that this non-agricultural land has remained only on record, otherwise, the land was continued to be put to agricultural use).
3. Thereafter, the Collector, Surendranagar, initiated suo-motu proceedings against order dated 17.10.1980 whereby the Deputy Collector, Limbdi converted the land into non-agricultural land. The Collector fixed the hearing on 08.11.1993 and after serving notice, the predecessor-in-title of the petitioner appeared through his advocate on 24.08.1994 and filed his reply on 24.11.1994. The Collector after hearing the parties passed the order, which is under challenge in this petition. The said order was confirmed by the Government in Revision Application filed under Section 211 of the Bombay Land Revenue Code on 25.02.2002 along with an application for condonation of delay. Delay was condoned. The matter was taken up for consideration and the authorities after hearing the parties rejected the said application vide order dated 26.07.2004.
4. Learned advocate for the petitioner vehemently submitted that the order passed by the Collector dated 24.11.1994 upsetting the order passed by the Deputy Collector granting NA permission on 17.10.1980, is taken in the suo motu revision after about 14 years and therefore, deserves to be quashed and set aside, along with the order passed in Revision Application on 26.07.2004.
4.1. Prima facie, the submission sounds to be attractive, more so because there are certain decisions which do say that the order should not be taken in suo motu revision after a lapse of reasonable time but, then the question which is arises for consideration is whether said 'principle' will be applicable to the order impugned in this matter.
In the present case, the petitioner, in any case, cannot be said to have any right whatsoever to challenge the order in question because he purchased the land in question by Registered Sale Deed dated 07.03.1996, i.e. much after the Collector passed the order on 24.11.1994. Besides that, the revision application was filed after 8 years, i.e. on 25.02.2002, after the order was passed by the Collector, which came to be decided by judgment and order dated 26.07.2004. It is thereafter that the petitioner approached this Court by the present petition.
5. To take a birds eye view of the facts of the case, the land was originally granted to one Jagmal Vasta, which was converted into old tenure from new tenure by order dated 16.04.1980 and thereafter, the Deputy Collector granted NA permission by order dated 17.10.1980. It is, thereafter, that the Collector took the order of Deputy Collector in suo motu revision and cancelled the same by order dated 24.11.1994, against which a revision was filed only on 25.02.2002, which came to be rejected by order dated 26.07.2004. The very fact that the petitioner entered the arena, after the Collector passed order on 24.11.1994, by purchasing the land by Registered Sale Deed dated 07.03.1996 speaks, about the 'bona fides' of the petitioner.
5.1. Learned advocate for the petitioner pressed into service an important aspect of the matter namely : under the order bearing No.JMN-V-944-71 dated 16.05.1971 issued by the office of the Collector, the Deputy Collector is authorized to dispose of the cases of conversion of new tenure to old tenure. But then, it is rightly observed and recorded by the Collector in its order that this order does not authorize the Deputy Collector from converting the agricultural land to non-agricultural land. (emphasis supplied).
5.2. Learned advocate for the petitioner also placed reliance on the Government Resolution dated 14.11.1970. According to learned advocate for the petitioner, it is contended that the Government Resolution provides that on payment of 50% premium, the agricultural land can be converted into non-agricultural land. Even if it is believed that it is so, the question is, ' who can do that'. It is specifically recorded by the Collector that the Deputy Collector is not authorized to do so. In view of that, the submissions made by learned advocate for the petitioner are found to be without any substance and not worth accepting and are required to be turned down. (emphasis supplied).
6. Learned Assistant Government Pleader Mr. Shukla supported the orders passed by the Collector as well as Revisional Authority and invited attention of the Court to the decision of this Court in the matter of Saburbhai Hemabhai Chauhan v. State of Gujarat & Ors.. reported in 2000 (1) GLH 580 and invited attention of the Court to paragraphs 12 and 13 of the judgment which are reproduced for ready perusal :
12. Thus in the instant case since the sale deed annexure-A is void abinitio the said sale deed cannot be legalised simply because delayed action was taken. On the facts of the present case it cannot be said that the authorities were aware of illegal transaction; rather it was a case where sale transaction was concealed and fraud was played upon the authorities. It was only when the record of rights team had gone to the village for inspection that the owners made representation on 12.4.1990 before the Deputy Mamlatdar, Record of Rights and then the sale deed in favour of the petitioner came to light.
13. Breach of condition case No. 22 of 91 on such report was initiated in the year 1991. It is therefore difficult to accept the contention that it was a case of delayed action. The disputed land originally was entered in the name of Bai Mani widow of Bhima Rama. The consolidation operations came in the year 1957 and regarding new block No. 7 entry was made that it was a new tenure. Bai Mani expired in the year 1972-73. Thereafter, the names of her nephews Chhatrasinh Hamirsinh and Kohyabhai Hamirsinh were entered as co-parceners. Once the entry was made in the life time of Bai Mani that the land was new tenure the entry in the names of the vendors of the petitioner could not be made as co-parceners because they could not be co-parceners of deceased Bai Mani. This transaction was also rightly considered to be illegal by the authorities. Thereafter, when the sale deed was executed in the year 1974 by the vendors in favour of the petitioner again the petitioner's name was entered as co-parcener. The purchaser in no case can be treated as co-parcener hence this entry was made deceitfully. If the sale deed would have been disclosed then the position would have been different. It is therefore a case where a fraud was definitely played upon the authorities and the authorities were not aware of the said sale transaction before the Record of Right team had gone to the village for making inspection. For the first time on 12.4.1990 representation was made by the previous owners regarding sale deed and then breach of conditions case 42 of 1991 came into existence. As such if the entry was certified in the year 1980 or 1982 under fraud or misrepresentation it cannot be said that it was a delayed action which was taken in 1991. Thus, this ground also cannot be pressed into service for holding the three impugned orders to be illegal and invalid.
6.1. Learned Assistant Government Pleader submitted that beside that there is another decision of this Court in the matter of Uma Small Scale Industrial Co-op. Society Ltd v. Collector, Surat & Ors., reported in 2002 (1) GLR 226, wherein this Court after considering the well known decision in the matter of Ragav Natha's case reported in 1969 GLR 992 (SC) observed that, 'it is true that the power must be exercised within a reasonable time, but where the order passed by a subordinate authority is non-est, the law laid down in Raghav Natha's case (supra) cannot be invoked.' 6.2. Learned Assistant Government Pleader invited attention of this Court to paragraph 8 of the said decision, wherein the decisions of the Hon'ble Apex Court are referred. The contents of paragraph 8 are as under :-
8. The learned Assistant Government Pleader appearing for the respondents submitted that so far as the question of delay in exercising power is concerned, there is no delay as is held by the Apex Court in the mater of State of Orissa and others v. Brundaban Sharma and another, reported in 1995 Supp. (3) SCC 249. She submitted that the Apex Court has held that when validity of a non est order is in question the same can be agitated in any proceeding at any stage.
She further submitted that in the aforesaid judgement, the Apex Court has also considered the judgement of this Court in the matter of the State of Gujarat v. Patil Raghav Natha and others, reported in (1969) 2 SCC 187, in which the aspect of delay was considered by this Court and the concept of exercising powers within a reasonable time was originated. (emphasis supplied).
7. In view of the aforesaid discussion, this Court is of the opinion that the matter is without any merits and deserves to be dismissed and the same is accordingly dismissed. Rule is discharged with no order as to costs. Status quo stands vacated.
(RAVI R.TRIPATHI, J.) /phalguni/ Page 7 of 7