Gujarat High Court
State Of Gujarat - Through Secretary vs Shah Arvindkumar ... on 23 June, 2021
Author: J.B.Pardiwala
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/LPA/492/2021 ORDER DATED: 23/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 492 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 7690 of 2011
=====================================================
STATE OF GUJARAT - THROUGH SECRETARY
Versus
SHAH ARVINDKUMAR DAULATKRISHNATHRUPOA SHAILESH PARIKH
=====================================================
Appearance:
MR CHINTAN DAVE, ASST. GOVERNMENT PLEADER for the Appellant(s)
No. 1
GOVERNMENT PLEADER(1) for the Appellant(s) No. 2,3,4 for the
Respondent(s) No. 1,2,3,4
=====================================================
CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 23/06/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This appeal under Clause 15 of the letters patent is at the instance of the State of Gujarat and others (original respondent Nos. 1 to 4) and is directed against the order passed by a learned Single Judge of this Court dated 16.06.2016 in the Special Civil Application No.7690 of 2011, filed by the respondents herein (original writ applicants) by which, the learned Single Judge allowed the writ application quashing and seting aside the impugned orders passed by the Collector as affirmed by the Gujarat Revenue Tribunal, respectively.
2. The facts giving rise to this appeal may be summerised as under;
Page 1 of 6 Downloaded on : Fri Jun 25 23:45:54 IST 2021C/LPA/492/2021 ORDER DATED: 23/06/2021 2.1 The subject - matter of this litigation is a parcel of land
bearing revenue survey No.315/1/2 admeasuring 1-79-7 Hec-Are-sq. mtrs. situated at the village Kalol, District Panchmahals. The original writ applicants are the owners of this parcel of land. This parcel of land was a new tenure land. In other words the land upon which the restrictions as imposed under Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 (herein after referred to as 'the Act') applied. It appears that the original writ applicants preferred an application before the Mamalatdar for removing the restrictions of Section 43 of the Act with respect to the land in question. The Mamlatdar by way of his order dated 20.11.1999 removed the restrictions as a result, the new tenure land got converted to old tenure land. It appears that some time in October 2002, it was decided that the order passed by the Mamlatdar dated 20.11.1999 be taken in review. As the writ applicants came to know about such decision they came before this Court by filing the Special Civil Application No.12327 of 2002 which came to be disposed of by the learned Single Judge vide order dated 13.01.2009. An ex - parte unilateral decision of the higher authority asking the concerned authority to take the order passed by the Mamlatdar in suo motu review came to be quashed by this Court. However, this Court had clarified at the relevant point of time that it would be open to the authorities to examine the legality and validity of the order passed by the Mamlatdar in accordance with law.
2.2 It appears that thereafter the Collector in exercise of powers under 76A of the Act vide its order dated 09.10.2010 set aside the Page 2 of 6 Downloaded on : Fri Jun 25 23:45:54 IST 2021 C/LPA/492/2021 ORDER DATED: 23/06/2021 order passed by the Mamlatdar, Kalol dated 20.11.1999. The writ applicants being dissatisfied with such order passed by the Collector challenged the same before the Gujarat Revenue Tribunal. However, the Revision Application came to be rejected by the tribunal, thereby, affirming the order passed by the Collector.
2.3 Being dissatisfied with the order passed by the Mamlatdar, as affirmed by the Revenue Tribunal, the writ applicants came before this Court by filing the Special Civil Application No.7690 of 2011. The learned Single Judge, after due consideration of the provisions of Section 76A of the Act and also relying upon a judgment rendered by a Coordinate Bench of this Court in the case of Thakorbhai Tribhovandas Rao & Ors. Vs. State of Gujarat & Ors. Reported in 1995 (1) GLH 758 allowed the writ application and quashed the orders passed by the Collector as well as the tribunal.
2.4 The State of Gujarat being aggrieved by the order passed by the learned Single Judge has come before this Court with the present appeal.
3. We have heard Mr. Chintan Dave, the learned Assistant Government Pleader appearing for the appellants. Mr. Dave first invited the attention of this Court to the order passed in the first round of litigation i.e. the Special Civil Application No.12327 of 2002 decided on 13.01.2009. According to Mr. Dave no sooner this writ application came to be disposed of vide order dated 13.01.2009, leaving it open to the authorities to examine the legality of the order passed by the Mamlatdar, the Collector Page 3 of 6 Downloaded on : Fri Jun 25 23:45:54 IST 2021 C/LPA/492/2021 ORDER DATED: 23/06/2021 proceeded to pass the order setting aside the order passed by the Mamlatdar in exercise of powers under Section 76A of the Act. He would further submit that the Revenue Tribunal affirmed the order passed by the Collector. According to Mr. Dave, in such circumstances, the period of limitation of one year as prescribed under Section 76A of the Act could not have come in the way of the Collector in taking the order passed by the Mamlatdar in a suo motu review.
4. The learned Single Judge while allowing the writ application held as under;
"4. The learned Advocate Mr. Majmudar for the petitioners, relying upon the decision of the Division Bench of this Court in the case of Thakorebhai Tribhovandas Rao and Ors Vs. State of Gujarat and Ors., reported in 1995 (1) GLH 758 and on the proviso to Section 76A of the Tenancy Act, submitted that the revisional powers could not have been exercised by the respondent No.2 after a period of one year as contemplated in the said proviso. He submitted that the order of the Mamlatdar was passed in the year 1999 and the said order is sought to be reviewed after a period of ten years by the respondent No.2 under the guise of the observations made by this Court in SCA No.12327 of 2002 filed by the petitioners, however, in the said order, this Court had kept all the contentions of the petitioners open, without limiting the powers of the respondents to examine and decide, in accordance with law, the legality of the order passed by the Mamlatdar.
5. The learned Counsel for the respondents has, however, submitted that since the respondent No.2 had reviewed the order of the Mamlatdar, pursuant to the order passed by this Court, no period of limitation as contained in the proviso to Section 76A of the Tenancy Act would apply.
6. As stated herein above, the legality of the impugned orders passed by the respondent Nos.2 and 4 is being examined only qua the provisions contained in Section 76A of the Tenancy Act as the respondent No.2 has reviewed the order of the Mamlatdar under Section 76A of the Tenancy Act. From the bare reading of the proviso to Section 76A of the Tenancy Act, it clearly transpires that the Collector could not have called for the record of any Page 4 of 6 Downloaded on : Fri Jun 25 23:45:54 IST 2021 C/LPA/492/2021 ORDER DATED: 23/06/2021 proceedings either suo motu or on the reference made by the State Government, after the expiry of one year from the date of such order passed by the Mamlatdar or Tribunal. In the case of Thakorbhai Tribhovandas Rao and Ors. Vs. State of Gujarat and Ors.(supra), it has also been held as under:-
"It will be seen that no record can be called for by the Collector after the expiry of one year from the date of the order made by the Mamlatdar or the Tribunal, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of the proceedings of the Mamlatdar or Tribunal. The proviso to Sec. 76A would be applicable even in a case where a Reference is made by the State Government requiring the Collector to call for the record and proceedings for th e purpose of satisfying himself as to the legality or propriety of the order. The limitation prescribed by the proviso for the exercise of the revisional powers beyond the expiry of one year from the date of the order is clear and explicit and the Collector will have no revisional power to be exercised beyond the period of one year prescribed by the proviso to Sec. 76A."
7. So far as the facts of concerned, the respondent the present case are No.2 had sought to review the order passed by the Mamlatdar after the expiry of ten years of the said order and, therefore, such review was hit by the proviso to Section 76A of the Tenancy Act. This Court, while passing the It is true that order in the petition filed by the petitioners, had observed that the powers of the respondents to examine the legality of the order passed by the Mamlatdar in accordance with law was kept open, however, at the same time, all the contentions of the petitioners were also kept open. It is needless to say that the respondent No.2 was required to act in accordance with law and keeping in view the provisions contained in the Tenancy Act. Since the proviso to Section 76A of the Tenancy Act does not allow the Collector to call for the record or to examine the legality of the order of the Mamlatdar or the Tribunal after the expiry of one year from the date of such order, the impugned orders passed by the Collector as well as the Revenue Tribunal are in violation of the said provision and, therefore, bad in law."
5. We are of the view that on 17.10.2002 i.e. the date of the internal communication, which was made subject matter of the Special Civil Application No.12327 of 2002, the period of limitation Page 5 of 6 Downloaded on : Fri Jun 25 23:45:54 IST 2021 C/LPA/492/2021 ORDER DATED: 23/06/2021 had already expired. The period of limitation as prescribed under Section 76A is One year from the date of the order. If at all the Collector wanted to take the order passed by the Mamlatdar in suo motu review, he could have done it on or before 20.11.2000. Therefore, the decision taken first in point of time in the year 2002 itself was time barred. In such circumstances, the disposal of Special Civil Application No.12327 of 2002 in the year 2009 would have no bearing at all.
6. In the overall view of the matter, we are convinced that no error, not to speak of any error of law could to said to have been committed in passing the impugned order. For the foregoing reasons, this appeal fails and is hereby dismissed.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) DRASHTI K. SHUKLA Page 6 of 6 Downloaded on : Fri Jun 25 23:45:54 IST 2021