Gujarat High Court
Amitbhai Kantilal Jayswal vs State Of Gujarat on 9 January, 2020
Equivalent citations: AIRONLINE 2020 GUJ 313
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/14055/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14055 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
NO
order made thereunder ?
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AMITBHAI KANTILAL JAYSWAL & 5 other(s)
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR MAHESH BHAVSAR(1781) for the Petitioner(s) No. 1,2,3,4,5,6
MRS HM BHAVSAR(5340) for the Petitioner(s) No. 1,2,3,4,5,6
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4
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CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 09/01/2020
ORAL JUDGMENT
With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing.
Draft amendment is allowed in terms of draft. The same shall be carried out forthwith.
1. Rule. Learned AGP waives service of rule for the respondent no.1- Page 1 of 12 Downloaded on : Sun Feb 16 15:35:47 IST 2020
C/SCA/14055/2018 JUDGMENT State.
2. By this writ petition, the petitioner has prayed for the following relief:
"A. Your Lordship may be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned Ex-Parte order dated:6/8/2018 passed by the Ld.Collector, Kheda District, Nadiad produced at Ann.A and the impugned Notices dated:7/8/2018 issued by the Mamlatdar and Krushi Panch, Kapadwanj produced at Ann.B Colly as being illegal, arbitrary, erroneous, and in violation of principles of natural justice, in the interest of justice."
3. The brief facts of the case leading to filing of the present writ petition are as under:
3.1. It is the case of the petitioner that Sarojben Kantilal Jayswal, who is the mother of the petitioner no.1 to 5 and Minaben Kantilal Jayswal and petitioner no.6-Falguniben Ganpatlal Jayswal purchased a land bearing Survey No.318 situated in the sim of Taiyabpura, Taluka Kapadwanj by a registered sale deed dated 10.02.1999. Thereafter, against the said sale transaction objections were raised and a notice dated 18.03.1999 was issued by the Mamlatdar, Kapadwanj to furnish the proof of agriculturists to the buyer of the said land. Thereafter, RTS/Takrari case No.4/1999 was registered in the office of the Mamlatdar, Kapadwanj and the Mamlatdar granted opportunity of hearing to the parties to the proceedings. Sarojben Kantilal Jayswal and Falguniben Ganpatlal Jayswal contended that they are agriculturists and the aforesaid land was purchased by a registered sale deed. Thereafter, the order dated Page 2 of 12 Downloaded on : Sun Feb 16 15:35:47 IST 2020 C/SCA/14055/2018 JUDGMENT 27.05.1999 was passed by the Mamlatdar, Kapadwanj in favour of the buyer of the aforesaid land and the objections were rejected.
3.2. Thereafter, Sarojben Kantilal Jayswal and the petitioner no.6-
Falguniben Ganpatlal Jayswal purchased the land bearing Survey No.1081/paiki/1 situated in the sim of Antisar Kapadwanj, District Kheda by registered sale deed no.1137 dated 23.08.2004 and accordingly, Entry No.10333 of the said sale transaction was mutated on 19.07.2005 and the same was certified in the revenue record. Again, Sarojben Kantilal Jayswal and petitioner no.6-Falguniben Ganpatlal Jayswal purchased the land bearing Survey No.8/3 situated in the sim of Mirapur village, Taluka Kapadwanj, District Kheda by a registered sale deed no.1028 dated 07.07.2006 and accordingly, Entry No.1606 dated 14.07.2006 of the said sale transaction was mutated and certified in the revenue record. Thereafter, Sarojben Kantilal Jayswal passed away on 01.08.2009 and thereafter, succession Entry No.1743 dated 20.08.2009 was mutated and certified on 09.10.2009 in the revenue record. Thereafter, petitioner no.2- Vinasbhai Kantilal Jayswal purchased the agricultural land bearing Survey No.9 situated in the sim of Mirapur village, Taluka Kapadwanj, District Kheda by a registered sale deed no.57 dated 11.01.2010 and accordingly, Entry no.1771 dated 20.01.2010 was mutated and it was certified on 09.03.2010 in the revenue record.
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C/SCA/14055/2018 JUDGMENT 3.3. Subsequently, the petitioner no.2-Vinasbhai Kantilal Jayswal again purchased the agricultural land bearing Survey No.6/paiki/1 situated in the sim of Mohammadpura village, Taluka Kapadwanj, District Kheda by registered sale deed no.383 dated 15.04.2010 and accordingly, Entry no.1774 dated 20.04.2010 was mutated and it was certified on 29.06.2010 in the revenue record.
3.4. By the impugned order dated 06.08.2018, the District Collector, Kheda referred the aforesaid sale transaction executed in favour of petitioner no.2-Vinasbhai Kantilal Jayswal to the Mamlatdar and Krisipanch, Kapadwanj for undertaking necessary inquiry under section 84C of the Gujarat Tenancy and Agricultures Lands Act, 1948 (for short "the Act") qua the aforesaid entries.
3.5. Thereafter, pursuant to the aforesaid order dated 06.08.2018, Mamlatdar, Kapadwanj issued a show cause notice to the petitioners calling upon them to explain the violation of provisions of Section 63 of the Act.
4. Learned advocate Mr.Mahesh Bhavsar appearing for the petitioner has submitted that the aforesaid order as well as issuance of subsequent notices is illegal as the same are issued after a period of 18 years from the Page 4 of 12 Downloaded on : Sun Feb 16 15:35:47 IST 2020 C/SCA/14055/2018 JUDGMENT first entry and 8 years delay after the last entry, which is made in the year 2010. In support of his submission, he has placed reliance on the judgment of the Coordinate Bench in the case of Bhanabhai Morarbhai Solanki vs. State of Gujarat, 1994 (1)GLR 822, on the judgment of the Division Bench in the case of Chandulal Gordhandas Ranodriya & Ors. vs. State of Gujarat & Ors., 2013 (2)GLR 1788 and on the judgment of the Division Bench in the case of Bharatbhai Naranbhai Vegda & Ors. V/s. State of Gujarat & Ors., 2016 (2) GLR 1021. Thus, he has submitted that the impugned notices as well as order are required to be quashed and set aside on the ground of delay.
5. Per contra, learned AGP Mr.Sahil Trivedi has submitted that the impugned order dated 06.08.2018 and show cause notice dated 07.08.2018 do not require any interference since the very status of the petitioners is in question as to whether they are agriculturists or not. He has submitted that the judgments on which reliance is placed by the learned advocate for the petitioners would not applicable to the facts of the present case as they do not deal with the circumstances as narrated in the show cause notice as well as in the impugned order passed by the District Collector. However, he has also submitted that the petitioners have alternative remedy of approaching the Gujarat Revenue Tribunal under Section 76 of the Act. Thus, he has submitted that the present writ Page 5 of 12 Downloaded on : Sun Feb 16 15:35:47 IST 2020 C/SCA/14055/2018 JUDGMENT petition may not be entertained.
6. I have heard the learned advocates appearing for the respective parties.
7. The facts, which are not in dispute, are that Sarojben Kantilal Jayswal, who is the mother of the petitioner no.1 and Minaben Kantilal Jayswal purchased land bearing Survey No.318 situated in the sim of Taiyabpura, Taluka Kapadwanj, District Kheda by a registered sale deed dated 10.02.1999. The aforesaid sale transaction was subject matter of scrutiny by the Mamlatdar, Kapadwanj and vide notice dated 18.03.1999, the Mamlatdar, Kapadwanj asked them to furnish proof of agriculturists. Pursuant to the scrutiny/inquiry of the Mamlatdar and after affording the opportunity of hearing to the parties to the proceedings, the Mamlatdar, Kapadwanj passed an order dated 27.05.1999 in favour of the buyer of the aforesaid land and the objections were rejected. The Mamlatdar had also issued a certificate dated 27.05.1999 certifying that Sarojben Kantilal Jayswal is an agriculturist. Thereafter, a subsequent sale deed no.1137 dated 23.08.2004 was executed and Entry No.10337 to such sale transaction was mutated on 19.07.2005 in the revenue record. Late Sarojben Kantilal Jayswal and the petitioner no.6-Falguni Ganpatlal Jayswal purchased the land bearing Survey No.8/3 situated in the sim of Mirapur village, Taluka Kapadwanj by a registered sale deed no.1028 Page 6 of 12 Downloaded on : Sun Feb 16 15:35:47 IST 2020 C/SCA/14055/2018 JUDGMENT dated 07.07.2006 and hence, transaction Entry No.1606 dated 14.07.2006 was mutated and certified in the revenue record. Late Sarojben Kantilal Jayswal passed away on 01.08.2009 and hence, succession Entry No.1743 dated 20.08.2009 was mutated and certified on 09.10.2009 in the revenue record. After her death, petitioner no.2-Vinasbhai Kantilal Jayswal purchased the agricultural land bearing Survey No.9 situated in the sim of Mirapur village, Taluka Kapadwanj, District Kheda by registered sale deed no.57 dated 11.01.2010 and hence, the sale transaction Entry No.1771 dated 20.01.2010 was mutated and it was certified on 09.03.2010. After the aforesaid entry, petitioner no.2- Vinasbhai Kantilal Jayswal purchased the agricultural land bearing Survey No.6/paiki/ situated in the sim of Mohammadpura village, Taluka Kapadwanj, District Kheda by registered sale deed no.383 dated 15.04.2010 and hence, Entry no.1774 dated 20.04.2010 was mutated in the revenue record and it was certified on 29.06.2010. Thus, the initial entry, which was made in the year 1999 pursuant to the sale deed dated 10.02.1999, regarding the concerned land was disputed by the Mamlatdar, Kapadwanj and after holding the necessary inquiry and hearing the concerned parties, a certificate dated 27.05.1999 was issued to Sarojben Kantilal Jayswal certifying her being an agriculturist. After 1999, the aforesaid transactions were carried out and the last transaction was entered in the year 2010 pursuant to the sale deed dated 15.04.2010. Page 7 of 12 Downloaded on : Sun Feb 16 15:35:47 IST 2020
C/SCA/14055/2018 JUDGMENT Even after the certificate given by the Mamlatdar, the Collector by the impugned order dated 06.08.2018 i.e. after passage of 18 years from the first entry and 8 years delay after the last entry, passed and order directing the Mamlatdar to hold an inquiry under Section 84 C of the Act for violation of the provisions of section 63 of the Act, which bars the transfer to non-agriculturist. The certificate issued by the Mamlatdar in the year 1999 is neither questioned nor rescinded in all these years..
8. Pursuant to the aforesaid order, the Mamlatdar issued show cause notice dated 06.08.2018 calling upon the petitioners to explain their status of being an agriculturist.
9. A perusal of the impugned order dated 06.08.2018 as well as subsequent notices reveal that the Collector has not considered the certificate issued by the Mamlatdar dated 27.05.1999 after the first sale transaction was investigated by him.
10. At this stage, it would be apposite to refer to the observations made by this Court in the aforementioned judgments. In the case of Bhanabhai Morarbhai Solanki (supra), the Coordinate Bench of this Court has held thus:
"4. It is a settled principle of law that suo motu revisional powers have to be exercised within reasonable time in view of the binding ruling of the Supreme Court in the case of State of Gujarat v. Patel Raghav Natha reported in (1969) X GLR 992. Following the aforesaid ruling of the Page 8 of 12 Downloaded on : Sun Feb 16 15:35:47 IST 2020 C/SCA/14055/2018 JUDGMENT Supreme Court in the case of Patel Raghav Natha (supra), the Division Bench of this Court in its ruling in the case of Bhagwanji Bawanji Patel v. State of Gujarat reported in (1971) XII GLR 156 held that such revisional powers have to be exercised within a period of one year from the date of the impugned order. It is true that both the aforesaid rulings were pertaining to Section 211 of the Code. The principle therein will have to be held applicable to exercise of revisional powers for cancellation of any mutation entry on the ground that the sate transaction reflected therein was in contravention of any provision of the Act or any other enactment.
5. Besides, sale of a parcel or agricultural land if made in contravention of any provision of the Act can be declared invalid in view of Section 83A of the Act and the necessary proceedings can be initiated under Section 84C thereof. In its ruling in the case of Bhaniben Makanbhai Tandel v. State of Gujarat , this Court has held that the initiation of the proceedings under Section 84C of the Act has to be made within reasonable time and if such proceedings are taken after five years or so they cannot be said to be taken within reasonable time. In that case, the proceedings under Section 84C of the Act were found to have been initiated after lapse of more than five years from the date the entry in the revenue records with respect thereto was certified. If initiation of the proceedings under Section 84C of the Act cannot be taken beyond any reasonable time, by analogy the proceedings for cancellation of any mutation entry cannot be taken beyond any reasonable time."
The Division Bench in the case of Bharatbhai Naranbhai Vegda (supra) on the aspect of issuance of delay in show cause notice has observed thus:
"12. We may first consider the question for interference to the order passed by the learned Single Judge. There cannot be second opinion on the aspect that if two views are possible and the learned Single Judge has taken one view, the Division Bench of this Court in exercise of the jurisdiction under Letters Patent would be loathe to interfere and may not entertain the appeal, but in a case where only one view was possible or that well settled legal position is not considered, which goes to the root of the matter for the jurisdiction of the authority, such would be an appropriate case for interference for exercise of the jurisdiction under the Letters Patent. Examining the case on the said aspects, we find that as per the above referred decisions of the Apex Court, the limitation provided for initiation of the action or the consideration of the reasonable period for initiation of the action or the bar operating of delay for initiation of the action are jurisdictional aspects on the power of the authority which has initiated the action. If as per the well settled principles of law, the bar of delay operates against the exercise of the jurisdiction or that the initiation of the action is beyond reasonable period as per the well settled principles Page 9 of 12 Downloaded on : Sun Feb 16 15:35:47 IST 2020 C/SCA/14055/2018 JUDGMENT of law, the action can be said as without jurisdiction. If an action is without jurisdiction, as observed by the Apex Court in the above referred decision in the case of State of Punjab (supra), the petition under Article 226 of the Constitution can be maintained and the jurisdiction of this Court under Article 226 of the Constitution can be invoked. If the action is decided on the ground of jurisdiction and found to be without jurisdiction by the Court while undertaking judicial scrutiny under Article 226 of the Constitution, the only view possible is that of the action without jurisdiction. If the action was without jurisdiction, we do not see that it would fall in the arena of discretion to be considered while exercising the power under Article 226 of the Constitution. We may record that the contention is not based on the conduct on the part of the petitioners which may lead the Court to decline the interference but the contention is on the ground that two views were not possible as against the settled legal position on the point of reasonable period and the delay for initiation of the action. Hence, we find that it is a fit case for interference with the order passed by the learned Single Judge and it cannot be said to be outside the jurisdiction of the appellate power of the Division Bench of this Court in Letters Patent as sought to be canvassed.
20. In any case, as the notice could be said as without jurisdiction on the ground of delay and laches as per the well settled principles of law, we do not propose to express any final view on the aspect of section 75 of the Ordinance. In any case, examining the matter on the either of the situation, the action of issuance of show-cause notice can be said to be without jurisdiction and hence, the petitioner would be justified in invoking the jurisdiction of this Court under Article 226 of the Constitution."
Similar view has been reiterated by the Division Bench in the case of Chandulal Gordhandas Ranodriya & Ors. (supra), the relevant paragraphs are extracted as below:
"17. While dealing with suo motu revisional power under Section 84(C) of the Act, 1976 the Supreme Court in Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim, reported in (1997) 6 SCC 71, held that generally where no time limit is prescribed for exercise of powers under statute, it should be exercised within a reasonable time. This is what the Supreme Court said :
"Section 84-C of the Act does not prescribe any time for initiation of the proceeding. But in view of the settled position by several judgments of this Court that wherever a power is vested in a statutory authority without prescribing any time- limit, such power should be exercised within a reasonable time. In the present case the transfer took place as early as in the year 1972 and suo motu enquiry was started by the Mamlatdar Page 10 of 12 Downloaded on : Sun Feb 16 15:35:47 IST 2020 C/SCA/14055/2018 JUDGMENT in September 1973. If sale deeds are declared to be invalid the appellant is likely to suffer irreparable injury, because he has made investments after the aforesaid purchase. In this connection, on behalf of the appellant reliance was placed on a judgment of Justice S.B. Majmudar (as he then was in the High Court of Gujarat) in State of Gujarat v. Jethmal Bhagwandas Shah (Spe.WA No. 2770 of 1979) disposed of on 1-3-1990, where in connection with Section 84-C itself it was said that the power under the aforesaid section should be exercised within a reasonable time. This Court in connection with other statutory provisions, in the case of State of Gujarat v. Patil Raghav Natha (1969) 2 SCC 187) and in the case of Ram Chand v. Union of India (1994) 1 SCC 44) has impressed that where no time-limit is prescribed for exercise of a power under a statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time. We are satisfied that in the facts and circumstances of the present case, the suo motu power under Section 84-C of the Act was not exercised by the Mamlatdar within a reasonable time."
19. It must be fairly said that if the statute does not prescribe time limit for exercise of revisional powers, it does not mean that such powers can be exercised at any point of time even if there is a breach of Section 43 of the Act, which is a provision which relates to a new tenure land, rather it should be exercised within a reasonable period of time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. It is clear from various judgments of the Supreme Court that where a statutory provision for exercise of any suo motu powers of revision does not prescribe any limitation, the powers must be exercised within a reasonable period of time even in the case of transaction which would be termed as void transaction.
20. Thus, so far as the first aspect of the matter is concerned, we hold that the learned Single Judge was not justified in taking the view that as the breach complained of is as regards Section 43 of the Act and as the land is a new tenure land, the powers to initiate action could be exercised at any point of time."
11. The conspectus of the aforesaid observations made by the Division Bench as well as the Coordinate Bench would reveal that a show cause notice which has been issued after a lapse of long delay can be said to be without jurisdiction, hence the petitioners cannot be relegated to avail the alternative remedy.
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C/SCA/14055/2018 JUDGMENT
12. In the present case, unquestionably, the things had settled in the year 1999 after the investigation done by the Mamlatdar and late Sarojben Kantilal Jayswal was issued certificate on 27.05.1999 certifying her as an agriculturist, however, the District Collector by the impugned order dated 06.08.2018 has tried to resurrect the issue by resorting to passing such orders and subsequently, the Mamlatdar has issued notice after considerable delay of 8 years. Thus, the delay ranges from 19 to 8 years and hence, as per the law enunciated by the Division Bench as well as the Coordinate Bench, the impugned order 06.08.2018 cannot be sustained and the same is hereby set aside. As a sequel, subsequent notices issued by the Mamlatdar, Kapadwanj, are also set aside.
13. The present writ petition is allowed. Rule is made absolute. Direct service is permitted.
Sd/-
(A. S. SUPEHIA, J) ABHISHEK Page 12 of 12 Downloaded on : Sun Feb 16 15:35:47 IST 2020