Gujarat High Court
Kabra Abdul Sattar Kasambhai vs Member Gujarat Revenue on 28 February, 2013
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
KABRA ABDUL SATTAR KASAMBHAI....Petitioner(s)V/SMEMBER GUJARAT REVENUE TRIBUNAL C/SCA/5509/1999 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 5509 of 1999 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 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 ? ================================================================ KABRA ABDUL SATTAR KASAMBHAI....Petitioner(s) Versus MEMBER GUJARAT REVENUE TRIBUNAL & 3....Respondent(s) ================================================================ Appearance: MR ANSHIN H DESAI, ADVOCATE for the Petitioner(s) No. 1 MR VANDAN BAXI, AGP PLEADER for the Respondent(s) No. 1 - 4 ================================================================ CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 28/02/2013 ORAL JUDGMENT
1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner seeks to challenge order dated 29.11999 passed by the Gujarat Revenue Tribunal in Application No.10 of 1998 confirming the order passed by the Collector, Rajkot in Appeal No.47 of 1996.
2. Facts shortly stated may be summed up thus:-
2.1 It is the case of the petitioner that he is an agriculturist and carrying on agricultural activities past more than 30 years. The petitioner purchased the agricultural land bearing survey No.319 by way of a registered sale deed dated 10th October, 1985 and an entry in the record of right was mutated on 30th December, 1985 being entry No.233.
2.2 On the strength of the purchase of land bearing survey No.319 in 1985, the petitioner purchased another parcel of land bearing survey No.316 in the year 1991 and the entry in that regard was mutated in the record of rights and was confirmed on 6th June, 1991 being entry No.397.
2.3 Record also reveals that the land bearing survey No.319, which was purchased by the petitioner in the year 1985, was sold off to a third party and an entry to that effect was also mutated and confirmed on 4th July, 1991 being entry No.399.
2.4 It appears that all the three entries were taken in suo motu revision by the Assistant Collector, Morbi in exercise of its power under section 54 of the Saurashtra Gharkhed Tenancy, Settlement and Agricultural Lands Ordinance, 1949 in a proceedings being Revision Case No.22 of 1992. The Assistant Collector, vide order dated 16th October, 1992 cancelled all the three entries on the premises that the transfer was invalid being hit in terms of section 54 of the Ordinance, 1949. The Assistant Collector proceeded on the footing that the petitioner was not an agriculturist.
2.5 Being dissatisfied with the order passed by the Assistant Collector, the petitioner preferred an appeal before the Collector, Rajkot being Appeal No.101 of 1992. The Collector set aside the order passed by the Assistant Collector and thought fit to remand the matter to the Assistant Collector, Morbi. After remand to the Assistant Collector, he in turn remanded the matter to the Mamlatdar vide order dated 4th August, 1985. The Mamlatdar vide order dated 26th July, 1996 held that the petitioner was an agriculturist and was carrying on agricultural operations past almost 30 years.
2.6 It appears that the order passed by the Mamlatdar holding that the petitioner is an agriculturist and engaged in the agricultural activities past 30 years was again taken in suo motu revision for the first time on 21st February, 1997 by the Deputy Collector, Morbi. Vide order dated 21st April, 1997, the Deputy Collector set aside the order of the Mamlatdar holding that the petitioner was not an agriculturist. The order passed by the Deputy Collector was challenged before the Collector, who confirmed the order passed by the Deputy Collector.
2.7 Being aggrieved by and dissatisfied with the order passed by the Collector, the petitioner preferred revision application before the Gujarat Revenue Tribunal and the Gujarat Revenue Tribunal vide order dated 29th January, 1999 confirmed the order passed by the Collector, Rajkot.
2.8 Being dissatisfied with the order passed by the Gujarat Revenue Tribunal, the petitioner has come up with this petition.
3. Mr. Anshin Desai, the learned advocate appearing on behalf of the petitioner vehemently submitted that the authorities below failed to consider the important question going to the root of the matter that the sou motu cognizance, which was taken by the Assistant Collector first in point of time, was almost after a period of 7 years. He submitted that the first entry pursuant to the sale deed of 1985 was mutated and certified in 1985 on the strength of which, another parcel of land bearing survey No.316 was bought in 1991. Mr. Desai also submitted that after succeeding before the Mamlatdar, who held that the petitioner is an agriculturist and engaged in the agricultural operations past 30 years, such order of the Mamlatdar was taken into suo motu revision by the Deputy Collector on 21st February, 1997 and the Deputy Collector set aside the order of the Mamlatdar vide order dated 21st April, 1997.
4. Thus, according to Mr. Desai, there is unreasonable delay first in point of time in exercise of suo motu powers. Mr. Desai also submitted that there is ample material on record in the form of statements to show that the petitioner is an agriculturist and was carrying on agricultural operations past almost 30 years before he bought the land in the year 1985. Mr. Desai therefore, prays to set aside the orders passed by the authorities below and allow the petition.
5. Mr. Vandan Baxi, the learned Assistant Government Pleader appearing for the State respondent submitted that there are concurrent findings recorded by two authorities, namely, the Collector as well as the Tribunal holding that the petitioner is not an agriculturist and could not have bought the agricultural land. He submitted that there is violation of provisions of section 54 of the Ordinance, 1949 to be read with section 75 of the Ordinance, 1949. He submitted that the transfer of 1985 could be termed as invalid. Mr. Baxi also submitted that there is no evidence on record to suggest that the petitioner is an agriculturist or was carrying on any agricultural operations prior to 1985. Mr. Baxi therefore, prays to confirm the orders passed by the authorities below and dismiss the petition.
6. Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question that falls for my consideration is whether the Tribunal committed any error in passing the order impugned.
7. I am of the view that the petition deserves to be allowed on a short ground of unreasonable delay. It is by now well settled by catena of decisions that suo motu powers will have to be exercised within reasonable time. In the present case, as is evident from the record that the land bearing survey No.319 was bought in the year 1985 and an entry to that effect was also mutated and certified in 1985.
After the entry was certified and there being no objection on the part of any of the authorities, the petitioner bought another parcel of land bearing survey No.316 in the year 1991. It is only for the first time in 1992 that the Assistant Collector thought fit to take the entries in suo motu revision almost after a period of seven years from the date of the first transaction of 1985. Any transaction in contravention of section 54 of the Ordinance, 1949 is made invalid and not void . This becomes clear from the language of section
54. The basic difference between the two terms invalid and void has been very well explained by this Court in the case of Mavjibhai Dharshibhai and others Vs. State of Gujarat and others, reported in 1994(2) GLR 1168 and which has been taken note of by the Division Bench of this Court in the case of Shambhuram Videshiram Morya Vs. State of Gujarat, through Secretary (Appeals) and others reported in 2012 (1) GLR 665.
8. In the circumstances, considering the overall facts of the present case and having regard to the fact that at the time when the land was bought in the year 1985, the appellant was carrying on agricultural operations and since then, he has maintained the status of the land and put the land to agricultural use, the decision to compulsorily evict the petitioner after lapse of almost 28 years deserves to be set aside.
9. In the result, the petition succeeds. The order passed by the Tribunal dated 29th January, 1999 as well as the order passed by the Collector, Rajkot dated 15/21.4.1997 are hereby set aside. Rule is made absolute.
(J.B.PARDIWALA, J.) shekhar Page 6 of 6