Gujarat High Court
Mangalbhai Ishwarbhai Patel vs State Of Gujarat on 4 September, 2018
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/13191/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13191 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE P.P.BHATT
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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 or any
order made thereunder ?
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MANGALBHAI ISHWARBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR A J PATEL(595) for the PETITIONER(s) No. 1,2,3
MR J K SHAH, AGP for the RESPONDENT(s) No. 1
MR AD DESAI(272) for the RESPONDENT(s) No. 3
MR.HARDIK B SHAH(3751) for the RESPONDENT(s) No. 3
RULE SERVED(64) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 04/09/2018
ORAL JUDGMENT
1. By way of present petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for issuance of appropriate writ, order or direction for quashing and setting Page 1 of 20 C/SCA/13191/2006 JUDGMENT aside the impugned orders at Annexures 'H' and 'I' hereto and consequently restoring the order at Annexure 'B' hereto.
2. Brief facts giving rise to the present petition are as under :
2.1 That, the land bearing Survey No.171, Block No.234 admeasuring 6475 sq. mtrs. of village Chharodi, Taluka Dascroi, District Ahmedabad, was owned, possessed and cultivated by the predecessors-
in-title of respondent No.3 prior to 1939-40 and respondent No.3 since the year 1951-52. That, in Village Form No. 7 & 12 in the column of other rights, words "new tenure" are found written. However, no endorsement/note of any order of the Competent Authority in this regard is not found for insertion of the words "new tenure" in the revenue record.
2.2 That the concept of new tenure was introduced for the first time in the year 1901 as contemplated in the proviso to Section 68 of the Bombay Land Revenue Code (for short "the Code"). That the words "new tenure" created lot of confusion in Page 2 of 20 C/SCA/13191/2006 JUDGMENT the mind of the general public at large and therefore, several representations were received by the Government to remove such confusion by prescribing guidelines for dealing with the cases of the lands of new tenure. That considering such representations received by the Government, vide Resolution dated 16/03/1982, the Government issued certain guidelines to be followed while dealing with the cases of the new tenure land. That as per the guidelines prescribed in the said Resolution, merely by writing words "new tenure" in the village record, particular land cannot be considered to be impartible and unalienable land; and unless the entry regarding a particular land being of new tenure is supported by any order of the competent authority, such entry would always be subject to an enquiry under Section 197 of the Code. That since in the present case, there was nothing on the revenue record to support the entry regarding the land being of new tenure, the respondent No.3 made an application dated 21.12.2001 to the Deputy Collector to delete the said entry from the revenue record.
2.3 That, pursuant to the said application, the
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Deputy Collector held an enquiry under Section 197 of the Code and during the course of such enquiry, he found that the words "new tenure" appearing in the revenue record in respect of the land in question were not supported by any document or any order of the competent authority and therefore, the said entry was required to be deleted. He, therefore, by his order dated 13.02.2002 directed that the entry regarding "new tenure" be deleted from the revenue record. That entry of the order dated 13/02/2002 passed by the Deputy Collector was mutated in the revenue record vide entry No.1340 dated 05.03.2004 and duly certified on 10.06.2004 by the Deputy Collector (Revenue), Dascroi, after following requisite procedure.
2.4 That thereafter, having found that the title to the land in question was clear and marketable, the petitioners purchased the said land from respondent No.3 by way of registered sale deed dated 13.05.2004 for a total consideration of Rs.2,00,000/-. That pursuant to the said sale deed, mutation entry No.1346 came to be mutated in Village Form No.6 on 22.05.2004, and duly certified on 11.08.2004 by the Page 4 of 20 C/SCA/13191/2006 JUDGMENT Deputy Mamlatdar (Revenue), Dascroi after following requisite procedure. That in the meanwhile, revised development plan came to be approved by the Government and it came into force on 18.05.2002 and under the said Development Plan, the land in question was included in the Residential Zone-1. The AUDA has also issued a certificate in that behalf on 03.04.2006. That since the land in question was included in Residential Zone-I, as provided under Section 28 of the Gujarat Town Planning and Urban Development Act, 1976, (for short "the T.P.Act"), the land in question ceased to be governed by the provisions of the Tenancy Act or the Bombay Land Revenue Code, inasmuch as it lost its identity as an agricultural land, and therefore, on activity other than the one permitted under the Development Scheme will be permitted to be carried on in the land in question. That since the land in question is included in the residential zone, it can be used only for the purpose of non-agricultural purpose of residence, and any use other than residential purpose would amount to committing an offence under the relevant provisions of the T.P. Act.
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C/SCA/13191/2006 JUDGMENT 2.5 That notwithstanding the aforesaid clear
position that the land in question was included in the residential zone under the Development Scheme sanctioned by the State Government way back in the year 2002 and notwithstanding the fact that the Deputy Collector had passed the order on 13.02.2002 directing that the words "new tenure" be deleted from the revenue record of the land in question, after the lapse of more than three years, the Collector sought to initiate proceedings being L.B. Review Case No.17 of 2005 for revising the aforesaid order dated 13.02.2002 and issued a show cause notice dated 19.03.2005 calling upon the petitioners to show cause as to why the mutation entry effected pursuant to the aforesaid order dated 13.02.2002 should not be canceled. The petitioners state that in response to the said show cause notice, they appeared before the Collector, Ahmedabad and submitted written reply and pointed out the reasons why said show cause notice was required to be withdrawn.
2.6 That, the Collector, Ahmedabad by has his order dated 14/07/2005 passed in L.B. Review Case No.17 of 2005, set aside the order dated 13.02.2002 Page 6 of 20 C/SCA/13191/2006 JUDGMENT passed by the Deputy Collector and directed the Mamlatdar, Dascroi to effect an entry in the revenue record showing that the land in question was a new tenure land.
2.7 That being aggrieved by and dissatisfied with the aforesaid order of the Collector, Ahmedabad, petitioners filed Revision Application No.68 of 2005 before the respondent-State. The Principal Secretary, Revenue Department (Appeals), Ahmedabad, however, by his order dated 18/23.03.2006 dismissed the said revision application and confirmed the order dated 14.07.2005 passed by the Collector, Ahmedabad. 2.8 That, being aggrieved by and dissatisfied with the aforesaid order dated 18/23.03.2006 passed by the Principal Secretary, Revenue Department (Appeals), Ahmedabad produced at Annexure-I hereto approached this Court by way of the present petition.
3. Heard the learned advocate Mr. A.J. Patel appearing for the petitioners as well as learned AGP Mr.J.K. Shah appearing for the respondent-State. Pending the petition learned advocate Mr.Hardik B. Shah submitted an application and requested to Page 7 of 20 C/SCA/13191/2006 JUDGMENT withdraw his appearance from the matter. Request is granted.
4. Learned advocate Mr. A.J. Patel appearing for the petitioners submits that the Collector committed an error in initiating proceedings under Section 211 of the Code after a lapse of more than three years from the date of order passed by the Deputy Collector and therefore, the impugned orders are contrary to the law laid down by the Hon'ble Supreme Court and this Hon'ble Court in several cases. It is submitted that initiation of proceedings under Section 211 of the Code after a lapse of more than 03 years is arbitrary, discriminatory and violative of the petitioners' fundamental rights guaranteed under Article 14 of the Constitution of India and therefore, the impugned order is liable to be quashed and set aside. It is further submitted that the authorities below committed an error in not properly appreciating the law laid down by the Hon'ble Supreme Court in its decision reported in AIR 1992 SC 111 to the effect that even void orders are required to be challenged within a reasonable time. It is further submitted that the mutation entry based Page 8 of 20 C/SCA/13191/2006 JUDGMENT on the order passed by the Deputy Collector at Annexure-B in respect of the substantive rights of the parties could not have been cancelled after a lapse of more than 03 years, when the land in question has undergone many metamorphosis and the petitioners have acted to their prejudice. The impugned orders are, therefore, arbitrary, discriminatory and violative of petitioners' fundamental rights guaranteed under the Article 14 of the Constitution of India.
4.1 Learned advocate Mr.A.J. Patel further submits that the action on the part of the authorities below in setting aside the order passed by the Deputy Collector at Annxure-B and cancelling mutation entries at Annexures 'C' and 'D' hereto is arbitrary and violative of petitioners' constitutional right of the petitioners guaranteed under Article 300A of the Constitution of India, inasmuch as the petitioners have purchased the land in question by registered sale deed dated 13.05.2004 on the faith of the mutation entry effected in Village Form No.6, and as a result of cancellation of the said mutation entries, the petitioners would be Page 9 of 20 C/SCA/13191/2006 JUDGMENT deprived of their property save by the authority of law and therefore, the impugned action requires to be corrected by an appropriate writ of this Hon'ble Court. It is further submitted that the authorities below committed an error in setting aside the order of the Deputy Collector and cancelling the mutation entry effected pursuant thereto after a lapse of more than three years and thereby destroying the rights of the petitioners which had accrued to them on the purchase of the land in question on the faith of the order passed by the Deputy Collector and mutation entry effected on the basis of such order. The impugned order is, therefore, liable to be quashed and set aside on this ground also. It is further submitted that the authorities below committed an error in cancelling the mutation entry which was effected on the basis of the order passed by the Deputy Collector after conducting requisite inquiry and based on verification of the revenue record and the guidelines prescribed by the Government itself vide Resolution dated 16.03.1982.
4.2 Learned advocate Mr.A.J. Patel further submits that the authorities below committed an error Page 10 of 20 C/SCA/13191/2006 JUDGMENT in not appreciating the guidelines laid down by the then State of Bombay in its Circular dated 21.09.1955, and by the State of Gujarat in its Resolution dated 16.03.1982, and therefore, the impugned order suffers from the vice of the total non-application of mind on the part of the authorities below to the aforesaid most relevant aspect. It is further submitted that the authorities below committed an error in not properly appreciating the paragraph 2 of the said Resolution, which clearly provides that the Government had decided to convert all lands held by the holders since three years prior to the merger of the States into old tenure from 01.11.1970 without recovering any price and the holders of such lands shall not be required to pay any premium while transferring such lands, and that on the instructions from the Mamlatdar, the Talati will on his own effect entries regarding old tenure and unrestricted rights of the holder in the revenue record. In this view of the matter also, the impugned order is liable to be quashed and set aside. It is further submitted that the authorities below committed an error in not properly appreciating that the land in question was never a subject matter of Page 11 of 20 C/SCA/13191/2006 JUDGMENT grant to the erstwhile owners either under the provisions of the Code or any Tenure Abolition Act or the Tenancy Act, and therefore, the land in question could not have been treated as new tenure land, and the Deputy Collector was justified in holding that the land in question was an old tenure land. 4.3 Learned advocate Mr. A.J. Patel further submits that the authorities below committed an error in not properly appreciating the law laid done by this Hon'ble Court in several decisions, whereby it is held that mere mutation entries effected in the revenue record, without anything more, are of no consequence and would not be determinative of the substantive rights of the parties qua the land in question. The impugned orders are, therefore, liable to be quashed and set aside. It is further submitted that the authorities below committed an error in not properly appreciating that law laid down by this Hon'ble Court in its decision reported in 38(3) GLR 2016 to the effect that mere mutation of the words "new tenure" in the revenue records is not sufficient proof of inalienability and impartibility, and that there must be additional and reliable proof to this Page 12 of 20 C/SCA/13191/2006 JUDGMENT fact. It is however, true that the matter is pending before the Hon'ble Supreme Court and till the decision is rendered by the Hon'ble Supreme Court, the authorities below could not have passed the impugned orders, and therefore, the impugned orders are liable to be quashed and set aside on this ground also.
4.4 Learned advocate Mr.A.J.Patel has placed reliance upon the following case laws :
(i) Bhagwanji Bawanji Patel v. State of Gujarat and Anr., reported in 1971 GLR Page 156;
(ii) State of Gujarat v. Patel Raghav Natha and Ors., [1969 GLR 992];
(iii) State of Gujarat v. Pravinbhai
Bhailalbhai Gor [2000(3) GLR 2169];
(iv) Labhubhai Valjibhai Gajera v. Secretary
(Appeals), Revenue Department, Gujarat State
and Ors., [2011(1) GLH 432];
(v) Joint Collector Ranga Reddy District and
Anr. v. D. Narsing Rao and Ors., [(2015) 3
SCC 695].
5. Learned AGP Mr.J.K.Shah appearing for the
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respondent-State while opposing the present petition submits that for the first time an application came to be made on 21/12/2001 for deleting the entry regarding "new tenure". The said entry had remained on record for the period of about considerable long period and there was no challenge to the said entry.
That, the Deputy Collector has vide order dated 13/02/2002 directed to delete the word "new tenure". Having considered the fact that the said entry had remained on record for a long period, the Collector thought it fit to take the order of the Deputy Collector dated 13/02/2002 in Suo-motu revision under Section 211 of the Bombay Land Revenue Code and after issuing notice and affording sufficient opportunity to the petitioners, the Collector vide order dated 14/07/2005 quashed and set aside the order dated 13/02/2002 passed by the Deputy Collector. Thereafter, the Secretary (Appeals), Revenue Department, Ahmedabad has by an order dated 18/23.03.2006 dismissed the appeal preferred by the petitioners against the order dated 14/07/2005 passed by the Collector. Learned AGP further submitted that it is not correct on the part of the petitioners to content that since the Collector has exercised the Page 14 of 20 C/SCA/13191/2006 JUDGMENT powers under Section 211 of the Bombay Land Revenue Code after lapse of 3 years, the action is barred by delay and latches. It is further submitted that the land was a new tenure land from the very beginning, and therefore, the orders passed by the Secretary (Appeals), Revenue Department, Ahmedabad and the Collector, Ahmedabad are just and legal and therefore, need not to be interfered and the present petition may be rejected.
6. Regard being had to the above submissions and looking to the facts and circumstances of the present case, it become clear from the material placed on record that the power under Section 211 of the Bombay Land Revenue Code has been exercised after a lapse of more than 03 years. There is catena of judgments, whereby it has been held that the power of revision under Section 211 of the Bombay Land Revenue Code must be exercised within a reasonable time. The period of seven years has been considered unreasonable by the Division Bench of this Court in the case of Bhagwanji Bawanji Patel v. State of Gujarat and Anr., reported in 1971 GLR Page 156. In the case of State of Gujarat v. Patel Raghav Natha Page 15 of 20 C/SCA/13191/2006 JUDGMENT and Ors., [1969 GLR 992] it has been held by the Hon'ble Supreme Court that the power of revision under Section 211 of the Bombay Land Revenue Code must be exercised within a reasonable time. In the case of State of Gujarat v. Pravinbhai Bhailalbhai Gor [2000(3) GLR 2169], the Division Bench of this Court has held that show-cause notice in exercise of revisional powers under Rule 108(6) issued 8 years after the mutation seeking to cancel the entry - Exercise of revisional powers not being within reasonable time, held, show-cause notice rightly quashed by the single Judge. In the case of Labhubhai Valjibhai Gajera v. Secretary (Appeals), Revenue Department, Gujarat State and Ors., [2011(1) GLH 432] the Devision Bench of this Court has held that revenue authorities issued notice in the year 2006 under the Fragmentation Act and declared the holding of the appellant as contrary to Section 84C of the Act, held, proceedings being initiated by the Revenue Authorities after a delay of more than 3 years, the same were vitiated by vice of the delay and therefore quashed and set aside. In the case of Joint Collector Ranga Reddy District and Anr. v. D. Narsing Rao and Ors., [(2015) 3 SCC 695] the Hon'ble Supreme Court Page 16 of 20 C/SCA/13191/2006 JUDGMENT has in Para 31 observed as under:
"31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third-party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised and fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority."
7. Apart from the above legal position, the Collector has while exercising the powers under Section 211 of the Bombay Land Revenue Code in the Page 17 of 20 C/SCA/13191/2006 JUDGMENT year 2005, failed to appreciate the fact that prior the land in question was covered under the revised development plan approved by the Government which came into force on 18/05/2002 and the land in question was included in the Residential Zone-1. Since the land in question was included in Residential Zone-1, as provided under Section 38 of the Gujarat Town Planning and Urban Development Act, 1976, the land in question ceased to be governed by the provisions of the Tenancy Act or the Bombay Land Revenue Code inasmuch as it lost its identity as an agricultural land and therefore, any activity other than the one permitted under the Development Scheme shall be liable for proceedings for violation/breach of provisions of the said T.P. Act. As such, it appears that the Collector, Ahmedabd City has not properly appreciated the material on record and passed the order dated 14/07/2005 without application of mind, contrary to the materials placed on record. The present petitioners are the bona fide purchasers of the land in question who have purchased the land in question by Registered sale deed dated 13/05/2004 relying upon the entry of the order dated 13/02/2002 passed by the Deputy Collector and after approval of Page 18 of 20 C/SCA/13191/2006 JUDGMENT revised development plan by the Government which came into force on 18/05/2002. Therefore also, apart from the ground of delay as discussed here-in-above, the order dated 14/07/2005 passed by the Collector, Ahmedabad City deserves to be quashed and set aside on the ground of non-appreciation of materials on record.
8. In view of the facts and circumstances of the present case as well as settled proposition of law, it becomes ample clear that in the instant case, the revisional power under Section 211 of the Bombay Land Revenue Code has been exercised by the respondent No.2 after a period of more than 03 years. Moreover, it is evident from the record that prior to exercise of powers under Section 211 of the Bombay Land revenue Code, the land in question was covered under the revised development plan approved by the Government in the year 2002 and included in Residential Zone-1. Considering all these aspects, the impugned order dated 14/07/2005 passed by the Collector, Ahmedabad City in L.B. Case No. L.B. Review Case No. 17 of 2005 and consequential order dated 18/23.03.2005 passed by the Secretary Page 19 of 20 C/SCA/13191/2006 JUDGMENT (Appeals), Revenue Department, Ahmedabad in Revision Application No. 68 of 2005 deserves to be quashed and set aside. Accordingly, the impugned order dated 18/23.03.2006 (Annexure-I) passed by the Principal Secretary (Appeal), Revenue Department, Ahmedabad and the order dated 14.07.2005 (Annexure-H) passed by the respondent No.2 are hereby quashed and set aside and consequently the order dated 13.02.2002 (Annexure-B) passed by the Deputy Collector is hereby restored.
9. The present petition is hereby allowed. Rule is made absolute. Direct service is permitted.
(P.P.BHATT, J) BDSONGARA Page 20 of 20