Gujarat High Court
Kanji Arjan Jethwa vs State Of Gujarat on 6 March, 2018
Author: N. V. Anjaria
Bench: N.V.Anjaria
C/SCA/4362/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4362 of 2016
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KANJI ARJAN JETHWA Versus STATE OF GUJARAT ========================================================== Appearance:
MR MEHULSHARAD SHAH for the PETITIONER(s) No. 1,2,3,3.1,3.2,3.3,3.4,4,5,6,7 ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the RESPONDENT(s) No. 1 DS AFF.NOT FILED (N) for the RESPONDENT(s) No. 2,3,4 GOVERNMENT PLEADER for the RESPONDENT(s) No. 1,2,3,4 NOTICE SERVED BY DS for the RESPONDENT(s) No. 2,3,4 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 06/03/2018 CAV ORDER Heard learned advocate Mr.Mehul Sharad Shah for the petitioners and learned Assistant Government Pleader Mr.Manan Mehta.
2. The challenge raised in this petition is against order dated 14th December, 2015 passed by the Secretary, Revenue Department (Appeals), whereby Revision Application No.18 of 2008 came to be dismissed, resultantly order of Collector, Kutch, dated 05th April, 2008 was maintained. The petitioners have prayed to set aside order of the Collector as also the order passed by the Deputy Collector dated 20th July, 1999. The authorities treated the subject matter land bearing Survey No.214/1 situated at Anjar-Kutch ordering forfeiture thereof on the ground Page 1 of 5 C/SCA/4362/2016 CAV ORDER that the same was transferred in breach of the condition.
3. Noticing the facts, the said land was owned by one Ramji Vaghji Mistry. It was a restricted tenure land as per order dated 29th August, 1961 passed by the District Collector. Survey No.214/1 admeasuring 15 Acres and Survey No.214/2 admeasuring 13.37 Hector which were given in Santhni to the said Ramji Vaghji Mistry, was consolidated into one Survey No.633. The said Ramji Mistry paid amount of three Pat for the land.
3.1 In the year 1983, the allottee - Ramji Mistry divided the land amongst the brothers. Land admeasuring 9.09 Acres came to be given to the brother of the petitioner - Shivlal Vaghji Mistry whereas 9.09 Acres fell to the share of another brother Arjan Vaghji Mistry - the ancestor of the petitioners herein. Entry No.933 was mutated. On 24th February, 2002 the Deputy Collector ordered conversion of land into old tenure. Such permission was granted to said brother Shivlal Vaghji Mistry as per order dated 09th August, 2002 passed by the Mamlatdar. Accordingly land admeasuring 9.09 Acres of Survey No.633 Paiki was converted into old tenure land from new tenure for the purpose of agriculture. Said Arjan Mistry also applied on 24th April, 1998 to the Mamlatdar, Anjar, seeking conversion of his part of the land. The Mamlatdar passed order dated 24th July, 1998 to permit him to convert the land to old tenure land by levying necessary charges.
Page 2 of 5C/SCA/4362/2016 CAV ORDER 3.2 The Deputy Collector thereafter appears to
have taken suo motu cognizance and by registering Case No.12 of 1998 under Section 79A of the Gujarat Land Revenue Code, issued notice to Arjan Mistry. The Deputy Collector passed order dated 20th July, 1999 and held that the land admeasuring 9.09 Acres transferred in favour of the said Arjan Vaghji Mistry without prior permission, therefore, there was breach of Section 79A of the Code.
3.3 The aggrieved petitioners filed appeal before the Collector. Their Appeal No.30 of 2000 was dismissed on 26th June, 2000. The revisional authority, when approached, passed the order to remand the matter to the Collector for fresh decision. The Collector again decided and passed order dated 05th April, 2008 dismissing the appeal holding that said Arjan Mistry had committed breach of conditions, ordering the land to be vested in the State Government.
3.4 It was against the aforesaid order of the Collector dated 05th April, 2008, the revision application was filed which also came to be dismissed being the impugned order.
4. Learned advocate for the petitioners raised the ground of unreasonable delay in exercise of suo motu powers and further submitted on facts that the brother of said Arjan Mistry was permitted the conversion of land which was the parcel of same land, which was never questioned by the authorities. On the Page 3 of 5 C/SCA/4362/2016 CAV ORDER other hand, petition was contested by respondent No.4
- Mamlatdar by filing affidavit-in-reply. Learned Assistant Government Pleader relied on the said affidavit and supported the impugned order.
5. As far as the factual merits were concerned, learned advocate for the petitioners could successfully submit that the Collector proceeded to reject the appeal without giving due regard to the documentary evidence produced before him. It was submitted that the Collector was not right in observing that the land could not have been partitioned amongst the brothers without registered sale deed and that the Circular of the State Government dated 30th October, 2002 provided that partition amongst the family members would not amount to breach of conditions under Section 79A of the Code. It could be submitted that the Collector also overlooked the material document in the nature of passbook which showed that the petitioners were agriculturists.
5.1 While the revisional authority failed to notice the aforesaid aspects, there were clinching ground which would render the orders of the authorities including the impugned order by the revisional authority to be bad in law. The Deputy Collector treated the act of partition amongst the brothers as breach of condition after 22 years. The land was partitioned amongst the brothers in the year 1983.
Page 4 of 5C/SCA/4362/2016 CAV ORDER 5.2 It was validly contended that after period
of 15 years, restrictions under the Tenancy Act would not continue and the land would become eligible to be converted into old tenure land. Furthermore, land survey No.633 was partitioned whereafter one of the brothers in whose share the parcel of land fell, applied and got converted his part into old tenure. The Deputy Collector in his case opined that since he was in possession of the land since 15 years, there was nothing objectionable in converting the land from new tenure to old tenure land. The present petitioner is a brother and is identically placed in whose case same reasoning would hold good.
6. The decisive aspect was also that the Deputy Collector sought to exercise his suo motu powers after 22 years. It is well reiterated position of law that suo motu powers has to be exercised within reasonable time. Gap of 22 years could by no means said to be reasonable period to be countenanced for suo motu exercise of powers by the authority.
7. As a result of above discussion, this petition is allowed in terms of prayer 8(A). The order dated 14th December, 2015 passed by respondent No.1 - Special Secretary, Revenue Department (Appeals), in Revision Application No.18 of 2008 as well as order of the Collector dated 05th April, 2008 and that of Deputy Collector dated 20th July, 1999 are set aside.
(N. V. ANJARIA ,J) Anup Page 5 of 5