Gujarat High Court
Vijayaben Manjibhai Gadhesara vs State Of Gujarat Through Principal ... on 10 September, 2018
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/9370/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9370 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA :
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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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VIJAYABEN MANJIBHAI GADHESARA
Versus
STATE OF GUJARAT THROUGH PRINCIPAL SECRETARY
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Appearance:
MR BM MANGUKIYA(437) for the PETITIONER(s) No. 1
MS BELA A PRAJAPATI(1946) for the PETITIONER(s) No. 1
MR MANAN MEHTA AGP(1) for the RESPONDENT(s) No. 1
MR. BHAVIK P SHAH(6391) for the RESPONDENT(s) No. 5,6,7
RULE SERVED(64) for the RESPONDENT(s) No. 2,3,4
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 10/09/2018
ORAL JUDGMENT
1. The present petition is filed by the petitioner under Articles 14, 19(1)(g), 21, 300A and 226 of the Constitution of India as well as under the provisions of Gujarat Land Revenue Code, 1879 Page 1 of 9 C/SCA/9370/2013 JUDGMENT (hereinafter referred to as the "Code") read with Rules framed thereunder for the prayers as prayed for inter alia that appropriate writ, order or direction may be issued quashing and setting aside the order passed by the Collector, Junagadh, the respondent no.4 herein dated 31.01.2011 and the order passed in Revision Application No.8/2011 by the Additional Secretary, Revenue Department (Appeals) dated 29/30.10.2012 on the ground stated in the memo of petition.
2. The facts of the case briefly summarized are as follows : 2.1 The petitioner has purchased the land in question from the original owner viz., Mahendrakumar Harshadray Adhavaryu by registered sale deed dated 25.10.2004 and in respect of the said land, an auction was conducted by the Special Recovery Officer, Junagadh District Cooperative Bank. The respondent no.6, Adhavaryu Mahendrakumar Harshadray purchased the land in an auction and entries have been mutated in the revenue record. Thereafter, there was a parcel of land, for which, entries have been mutated in Page 2 of 9 C/SCA/9370/2013 JUDGMENT the name of Narendrakumar Harshadray Adhavaryu. This aspect has not been considered and the Mamlatdar, Talala, vide communication dated 26.02.2009, called upon the petitioner to produce the material and ultimately, the Collector passed an order dated 31.01.2011 directing the Deputy Collector to initiate suo motu proceedings as stated in the order dated 31.01.2011 produced at AnnexureE. It has been contended that there is breach of Section 73AA of the Code and permission under Section 73AB is not obtained. This led to further Revision Application No.8/2011 before the Secretary (Appeals), who passed impugned order, which has led to filing of the present petition on the grounds stated in the memo of petition.
3. Heard learned advocate, Shri B.M. Mangukiya for the petitioner and learned AGP Shri Manan Mehta for the respondents.
4. Learned advocate, Shri Mangukiya referred to the background of the facts and submitted that the transaction of purchase of land which has taken place 15 years back, for which, entries have also Page 3 of 9 C/SCA/9370/2013 JUDGMENT been mutated, is sought to be examined in exercise of suo motu powers. He submitted that the land in question was purchased by the respondent no.6 in an auction in the year 1994 and entry was mutated in the name of the respondent no.6. Thereafter there was a partition and ultimately, it was purchased by the petitioner by registered sale deed. He, therefore, submitted that right from 1994 till 2011 for about 15 years, it was not noticed or questioned and now in exercise of revisional power after 15 years, it is sought to be reexamined on the ground of contravention of Section 73AA of the Code. Learned advocate, Shri Mangukiya submitted that such exercise of power beyond a reasonable period may not be sustained. In support of his submission, he has referred to and relied upon the judgment of the Hon'ble Division Bench in case of Chandulal Gordhandas Ranodriya & Ors. Vs. State of Gujarat & Ors., reported in 2013 (2) GLR 1788. He submitted that as provided in Section 73AA of the Code, such power could be exercised within a reasonable time, which has been settled by catena of judicial pronouncement. He, therefore, submitted that Page 4 of 9 C/SCA/9370/2013 JUDGMENT exercise of such power after lapse of huge time may not be sustained or justified.
5. Another facet of submission is also that socalled contravention would not be attracted inasmuch the land in question is purchased by the respondent no.6 pursuant to the auction sale held by the Bank or the Recovery Officer and, therefore, it is not a transfer as suggested inasmuch it is a purchased in an auction held in exercise of statutory powers under the Act. Therefore also, such order exercising suo motu powers cannot be justified or sustained.
6. Learned AGP Shri Mehta, however, referred to the provision of Section 73AA of the Code and also referred to Section 74AA(4) of the Code and submitted that when it came to the notice, such powers have been exercised and Section 135 of the Code provides for exercise of such powers when transaction has taken place in breach of Section 73AA of the Code.
7. In rejoinder, learned advocate, Shri Mangukiya has referred to the judgment of the Hon'ble Division Bench (Coram : Subhash Reddy, CJ & Vipul M. Pancholi, J.) in Letters Patent Appeal No.890 of Page 5 of 9 C/SCA/9370/2013 JUDGMENT 2017 in Special Civil Application No.10924 of 2017 and allied matters and strenuously submitted that the facts of the case are totally different and the transfer has taken place pursuant to the auction held in exercise of statutory powers and in any case, such power could not have been exercised beyond reasonable period and, therefore only on the ground of delay, the present petition may be allowed.
8. In view of the rival submissions, it is required to be considered whether the present petition deserves consideration.
9. As could be seen from the record, the transaction of the sale in favour of the petitioner is by registered sale deed in the year 1994 and, thereafter, the transfer of possession has also taken place. Therefore, the exercise of power at belated stage under Section 73AA of the Code may not be justified as it is an exercise beyond reasonable period. This aspect has been considered in catena of judicial pronouncements. The Hon'ble Division Bench in a judgment in case of Chandulal Gordhandas Ranodriya (supra) has made the observations relying upon the judgment of the Page 6 of 9 C/SCA/9370/2013 JUDGMENT Hon'ble Apex Court in case of Employees State Insurance Corporation v. C.C. Santhakumar, reported in 2007 (1) SCC 584. Further in the judgment of the High Court in case of Bharatbhai Naranbhai Vegda & Ors. Vs. State of Gujarat & Ors., reported in 2016 (2) GLR 1021, it has been observed referring to earlier judgment of in case of Bhanji Devshibhai Luhar Vs. State of Gujarat & Ors., reported in 2011 (2) GLR 1676 that initiation of action after beyond reasonable period by issuance of show cause notice would be bed. It has also been observed that such exercise of power would not be justified.
10. Moreover, a useful reference can be made to the judgment in case of Vijayrajsinhji Virbhadrasinhji Gohil & Anr. Vs. State of Gujarat & Ors., reported in 2015 (1) GLR 444, wherein it has been observed, "Again according to the Advanced Law Lexicon by P. Ramanatha Aiyer, 3rd Edn. 2005, 'reasonable time' has been discussed and it has been clearly observed :
"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer."Page 7 of 9
C/SCA/9370/2013 JUDGMENT "Reasonable time" is defined to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case." (Emphasis supplied)
11. Thus suo motu powers are sought to be exercised after a period of 15 years when the transaction has taken place in 1994 and entries are mutated, which are now sought to be questioned after 15 years.
12. One further aspect, which has been noted is the development that has taken place like the fact that the land has been purchased in an auction sale, which will stand on a different footing than the transfer by an individual. Moreover, Section 73AA(4) of the Code refers to a period of 3 years in exercise of such powers and the procedure has been prescribed. In the facts of the case, no such procedure has been followed nor any procedure is followed before exercise of such power beyond reasonable period. Assuming that the procedure is followed and Section 73AA of the Code is attracted even then, it is beyond a reasonable period at later stage after the transaction had taken place 15 years back.
Page 8 of 9
C/SCA/9370/2013 JUDGMENT
13. It is in these circumstances, having regard to the long line of judicial pronouncement, which does not approve the exercise of sum motu powers beyond reasonable period, the present petition cannot be entertained. It is also made it clear that this Court has not considered the issues regarding the purchase of the land in action and the applicability of Section 73AA of the Code in such transaction, where the land is purchased in an auction.
14. Therefore, the present petition stands allowed in terms of Para No.10[B]. The order passed by the respondent no. 4 - Collector, Junagadh dated 31.01.2011 and the order passed in Revision Application No.MVV/HKP/ JNDH/8/2011 by the respondent no.1 - Additional Secretary, Revenue Department (Appeals), Ahmedabad dated 29/30.10.2012 are hereby quashed and set aside. Rule is made absolute. Direct service is permitted.
(RAJESH H.SHUKLA, J.) Gautam Page 9 of 9