Gujarat High Court
Nirmalaben Laxmishankar Sompura vs State Of Gujarat Through Secretary on 4 December, 2018
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/13007/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13007 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 13009 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 13010 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 13011 of 2012
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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NIRMALABEN LAXMISHANKAR SOMPURA
Versus
STATE OF GUJARAT THROUGH SECRETARY
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Appearance:
BHARGAV KARIA AND ASSO(6631) for the PETITIONER(s) No. 1
MR. MANAN MEHTA, AGP for the RESPONDENT(s) No. 1,2,3,5
RULE SERVED(64) for the RESPONDENT(s) No. 1,2,3,4,5
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 04/12/2018
COMMON ORAL JUDGMENT
1. The present group of petitions are filed the petitioner under Page 1 of 17 C/SCA/13007/2012 JUDGMENT Articles 14, 19, 226 and 227 of the Constitution of India and also under the Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance Act 1949 (hereinafter referred to as "the Ordinance Act of 1949") for the prayer as prayed for inter alia that appropriate writ, order or direction may be issued quashing and setting aside the impugned order passed in;
(i) Revision Application No. 9/2010 by the Secretary (Appeals), Revenue Department, Ahmedabad dated 13.6.2012 (at Annexure-K) and also the order passed in Gharkhed Ordinance Appeal Case No. 2/09-10 by the Collector, Surendranagar dated 31.3.2010 (at Annexure-G) and also the order passed in Gharkhed Ordinance Case No. 57/03-04 by the Deputy Collector, Dhangadra dated 22.12.2008 (at Annexure-E) on the grounds stated in the memo of Special Civil Application No. 13007 of 2012;
(ii) Revision Application No. 10/2010 by the Secretary (Appeals), Revenue Department, Ahmedabad dated 13.6.2012 (at Annexure-K) and also the order passed in Gharkhed Ordinance Appeal Case No. 3/09-10 by the Collector, Surendranagar dated 31.3.2010 (at Annexure-G) and also the order passed in Gharkhed Ordinance Case No. 53/03-04 by the Deputy Collector, Dhangadra dated 22.12.2008 (at Annexure-E) on the grounds stated in the memo of Special Civil Application No. 13009 of 2012; Page 2 of 17
C/SCA/13007/2012 JUDGMENT (iii) Revision Application No. 11/2010 by the Secretary
(Appeals), Revenue Department, Ahmedabad dated 13.6.2012 (at Annexure-K) and also the order passed in Gharkhed Ordinance Appeal Case No. 1/09-10 by the Collector, Surendranagar dated 31.3.2010 (at Annexure-G) and also the order passed in Gharkhed Ordinance Case No. 58/03-04 by the Deputy Collector, Dhangadra dated 22.12.2008 (at Annexure-E) on the grounds stated in the memo of Special Civil Application No. 13010 of 2012;
(iv) Revision Application No. 12/2010 by the Secretary (Appeals), Revenue Department, Ahmedabad dated 13.6.2012 (at Annexure-K) and also the order passed in Gharkhed Ordinance Appeal Case No. 5/09-10 by the Collector, Surendranagar dated 31.3.2010 (at Annexure-G) and also the order passed in Gharkhed Ordinance Case No. 59/03-04 by the Deputy Collector, Dhangadra dated 22.12.2008 (at Annexure-E) on the grounds stated in the memo of Special Civil Application No. 13011 of 2012;
2. It is contended that the order passed in Revision Application by the authority is illegal, improper and not sustainable. Therefore the suo motu exercise of powers and / or the order passed by the Respondent Authority or the Secretary (Appeals), Revenue Department beyond a reasonable time is bad in law. It has been further emphasized that such exercise of suo motu powers has to be Page 3 of 17 C/SCA/13007/2012 JUDGMENT within a reasonable period of time as settled by the judgment of the Hon'ble Apex Court in case of State of Gujarat v. Patel Raghav Natha reported in (1969) 2 SCC 187 and thereafter in catena of judicial pronouncements.
3. The brief facts of the case as stated in SCA 13007/2012 are that the petitioner is said to have purchased the land in Taluka City Dhangadhra, District Surendranagar by registered sale deed dated 5.9.1997 for which entry no. 8643, 6986 has been made by the Mamlatdar on 20.12.1997. However, a show cause notice dated 7.8.2006 came to be issued about the status of the petitioner as an agriculturist which led to further proceedings culminating into aforesaid revision application and the impugned order. 3.1 Similarly, the facts of the case as stated in SCA 13009/2012 are that the petitioner is said to have purchased another land in Taluka City Dhangadhra, District Surendranagar by registered sale deed dated 6.10.1994 for which entry no. 6986 has been made by the Mamlatdar on 28.12.1994. However, a show cause notice dated 7.8.2006 came to be issued about the status of the petitioner as an agriculturist which led to further proceedings culminating into aforesaid revision application and the impugned order. 3.2 The facts of the case as stated in SCA 13010/2012 are that the petitioner is said to have purchased another land in Taluka City Page 4 of 17 C/SCA/13007/2012 JUDGMENT Dhangadhra, District Surendranagar by registered sale deed dated 6.10.1994 for which entry no. 6988 has been made by the Mamlatdar on 28.12.1994. However, a show cause notice dated 7.8.2006 came to be issued about the status of the petitioner as an agriculturist which led to further proceedings culminating into aforesaid revision application and the impugned order, and; 3.3 the facts of the case as stated in SCA 13011/2012 are that the petitioner is said to have purchased the land in Taluka City Dhangadhra, District Surendranagar by registered sale deed dated 6.10.1994 for which entry no. 6987 has been made by the Mamlatdar on 28.12.1994. However, a show cause notice dated 7.8.2006 came to be issued about the status of the petitioner as an agriculturist which led to further proceedings culminating into aforesaid revision application and the impugned order. Therefore it has been contended that the powers have been exercised after 7 years and / or 12 years and 9 years respectively which is not permissible.
4. Learned Advocate for the petitioner has submitted that the petitioner has been an agriculturist since 1994 for which different revenue entries as stated above have been made and certified by Page 5 of 17 C/SCA/13007/2012 JUDGMENT the Mamlatdar and thereafter the present land in question has been purchased. It has been contended that the exercise of powers on the ground of breach / violation of Section 54 of the Ordinance Act after a lapse of seven 7 and / or 12 years and 9 years is arbitrary, illegal and beyond reasonable period.
5. It has been contended that reasonable time or reasonable period has to be considered in light of the aforesaid judgment of the Hon'ble Apex Court or the Hon'ble Division Bench of the High Court including the judgment of the Hon'ble Division Bench in case of Chandulal Gordhandas Ranodriya & Ors. v. State of Gujarat & Ors. reported in (2013) 2 GLR 1788 and also the judgment of the Hon'ble Apex Court in case of Joseph Severance v/s Benny Mathew reported in (2005) 7 SCC 667 where it has been observed:
"The expression "reasonable time" means 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."
6. The agricultural land is stated to have been conveyed in violation of Section 54 of the Ordinance Act of 1949 which has led to exercise of such powers. Thus, in the notice or in exercise of suo motu powers, the notices are issued under Section 54 of the Ordinance Act of 1949 on the ground that the land is sought to be Page 6 of 17 C/SCA/13007/2012 JUDGMENT transferred in favour of the persons who are not agriculturists and without prior permission and therefore the lands are liable to be confiscated by the government. There is also alleged breach of Fragmentation Act
7. Thus, it has been contended that exercise of suo motu powers after the delay of more than 7 years regarding the entry and / or the sale transaction are bad and therefore the order deserve to be quashed and set aside.
8. Heard learned Advocate Shri Bhargav Karia for Bhargav Karia & Associates for the petitioner and learned AGP Shri Manan Mehta for the Respondent State.
9. Learned Advocate Advocate Shri Bhargav Karia for the petitioner has pointedly referred to the background of the facts as well as the provisions of the Ordinance Act of 1949. It is submitted that the purpose of the Ordinance Act of 1949, as could be seen, has been to protect the right of agriculturist or the agriculture labourer and to protect the interest in the land by putting such restriction of transfer of agricultural land. The approval of the competent authority before any such transaction for transfer of the land could be affected has been to protect the interest of such agriculturist or labourer so that their land is not transferred and they can have the land with them.
Page 7 of 17
C/SCA/13007/2012 JUDGMENT
10. Learned Advocate Shri Bhargav Karia referred to the aspect of delay in respect of suo motu powers for the purpose of Section 54 of the Ordinance of 1949. He submitted that apart from that, the evidence on record would suggest that the impugned order is contrary to the material and evidence on record inasmuch as the petitioner purchased the land in question in the year 1994 but was an agriculturist by virtue of Entry No. 2684 dated 1.8.1982 which has not been cancelled. He submitted that in spite of the earlier round by which the High Court vide judgment and order in SCA 4739/2011 to 4742/2011 dated 20.4.2011 remanded the matter to consider afresh. The same order has been passed without appreciating the material. He submitted that therefore the exercise of power beyond a reasonable period may not be justified.
11. Learned Advocate Shri Karia has emphasized regarding the propriety of exercise of such powers beyond a reasonable period contending that it would not justify exercise of such power beyond a reasonable period as observed and laid down in catena of judicial pronouncements including the judgment of the Hon'ble Apex Court in case of State of Gujarat v. Patel Raghav Natha (supra) as well as the judgment of the Hon'ble Division Bench in case of Chandulal Gordhandas Ranodriya & Ors. v. State of Gujarat & Ors. reported in (2013) 2 GLR 1788 as well as the judgment of Page 8 of 17 C/SCA/13007/2012 JUDGMENT the Hon'ble Apex Court reported in 2009 (9) SCC 353 in case of Santoshkumar Shivgonda Patil & Ors. v. Balasaheb Tukaram Shevale & Ors. Referring to the observations made in this judgment including the judgment reported in 2013 (2) GLR 1788 in case of Chandulal Gordhandas Ranodriya & Ors. v. State of Gujarat & Ors., which in turn has referred to the earlier judgment of the Hon'ble Apex Court in case of Collector and others v. P. Mangamma and others reported in (2003) 4 SCC 488 and also referred to the Advanced Law Lexicon by P. Ramnatha Aiyer (3rd Edition, 2005) emphasizing that;
"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects such party from losses that he ought not to suffer."
'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."
12. Reference is also made to the judgment of this Court in a judgment in case of State of Gujarat v. Kiritkumar Amrutlal Lakadawala reported in 2013 (0) GLHEL-HC 230339 as well as the judgment in case of Arunbhai Jagubhai Patel v. Collector, reported in 2013 (0) GLHEL-HC 230338 on the same issue. Reliance is also placed on the judgment of the Hon'ble Apex Court in case of Gohil Jesangbhai Raysangbhai & Ors. v. State of Page 9 of 17 C/SCA/13007/2012 JUDGMENT Gujarat & Another reported in (2014) 5 SCC 199. Therefore, in the present case, the suo motu power is exercised beyond a reasonable period that is after more than 7 years. It has been strenuously urged that such exercise of powers cannot be sustained and it is arbitrary and unreasonable.
13.Per contra;
learned AGP Shri Manan Mehta the Respondent State has referred to the background of the facts and tried to submit that the underlying purpose of the Ordinance Act of 1949 is required to be borne in mind. It was emphasized that the purpose of such Ordinance Act of 1949 was to give protection to such farmers or the agricultural labourers in order to protect the land being transferred and to protect their land. It was submitted that the restrictions which have been placed are for the benefit of such farmers or the agricultural labourers with a condition to take the previous approval and / or transfer only in favour of the agriculturist subject to the procedure and approval. Therefore, learned AGP has referred to Section 54 as well the notices issued in exercise of power under Section 75 of the Ordinance Act of 1949 and submitted that the land in question is sought to be transferred either without the permission or the approval and so called transfer is not a legal or valid transfer with necessary Page 10 of 17 C/SCA/13007/2012 JUDGMENT permission and by a registered document or the sale deed. Therefore it is submitted that the title qua the land in question can be transferred only by a registered sale deed which has not been executed in light of th statutory provisions of the Ordinance Act 1949. Therefore, such transaction of the so-called sale are not valid and it cannot be said that it was for transfer of the land. However, learned AGP submitted that if the land could not be transferred without approval and necessary permission, any such transaction prohibits such transaction, and the sale of the land would be bad and, therefore, the notice has been issued as there is violation of statutory provisions and the restriction imposed.
14.Learned AGP has also submitted that what could be said to be a reasonable period is required to be examined from case to case basis as there cannot be any straight jacket formula to decide about the reasonable period. Learned AGP submitted that the purpose has to be considered and thereafter the word 'reasonable period' has to be considered for the purpose of deciding whether the exercise of suo motu powers can be said to be arbitrary.
15. The emphasis made on the word 'reasonable period' with reference to Advanced Law Lexicon by P. Ramnatha Aiyer (3rd Edition, 2005) and other observations, it was submitted that the power could be exercised only when it has been noticed in each particular Page 11 of 17 C/SCA/13007/2012 JUDGMENT case depending upon the facts of the case and therefore the persons who tried to circumvent the statutory provisions may not be heard to say about the exercise of powers beyond a reasonable period.
16. Learned AGP submitted that if some delay has taken place, it is required to be considered that the order is passed on wrong information or when the facts were brought to the notice regarding breach of the statutory provisions, the proceedings have been initiated. It was emphasized that when the transaction of the land is ab initio void and contrary to the statutory provisions of law, then the limitation should not come in the way. It is stated that the land in question was santhani and the conditions have been violated with regard to the possession of the land including transfer of possession of the land without the prior approval.
17.In view of the rival submissions, it is required to be considered whether the prayer as prayed for deserve consideration and whether the order passed in exercise of suo motu powers under the Ordinance Act of 1949 can be said to be arbitrary and illegal.
18.As stated above, the purpose of the Ordinance Act of 1949 has been to protect the interest of the agriculturist or the agricultural labourer and therefore restrictions have been placed on transfer of agricultural land without prior approval and such other restrictions have been imposed. The object is that the land is not taken away or Page 12 of 17 C/SCA/13007/2012 JUDGMENT transferred by a person in favour of one who is not an agriculturist, and therefore, such restrictions have been placed with further riders regarding income criteria existing. Therefore there is no quarrel about the underlying purpose and the object of the Ordinance Act of 1949 for which the Ordinance Act of 1949 has been enacted with necessary restrictions. However, the moot question is the justification of exercise of powers beyond a reasonable period and whether such exercise of power at belated stage could be sustained.
19.As rightly submitted, the word 'reasonable time' has to be considered with reference to the background of the facts of the case and the statutory provisions as referred to by the learned Advocates appearing for the parties, Advanced Law Lexicon by P. Ramnatha Aiyer (3rd Edition, 2005) defines the reasonable time as follows:
"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects such party from losses that he ought not to suffer."
'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." However, the word 'reasonable time' is defined to be so much time as is necessary under the circumstances to do conveniently what is contract or the duty requires to be done in a particular case. Therefore, having regard to the lapse of time for exercise of suo Page 13 of 17 C/SCA/13007/2012 JUDGMENT motu powers under the Ordinance Act of 1949 has to be considered.
20. The Hon'ble Apex Court in a judgment in case of State of Gujarat v. Patel Raghav Natha (supra) has clearly observed that even if such transactions have restrictions or the statutory restrictions, the exercise of power has to be within the reasonable period. The same view has been reiterated by the courts time and again including the judgment of the Hon'ble Apex Court in case of Joseph Severance v. Benny Mathew (supra).
21. The same view has been reiterated by the Hon'ble Division Bench in a judgment in case of Chandulal Gordhandas Ranodriya & Ors. v. State of Gujarat & Ors. (supra). It has been observed:
"It must be fairly said that if the statue 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."
[emphasis supplied] Page 14 of 17 C/SCA/13007/2012 JUDGMENT
22.Therefore as observed, where the statute does not provide for the time limit, it has to be considered as a reasonable time and the provisions of the Ordinance Act of 1949 referred to a period of three years. Therefore, the moot question is as to what could be said to be reasonable period for such powers.
23. As discussed above, the suo motu exercise of powers is beyond the period of three years. As stated above, in the present case it is after 7 years and / or 9 years or 12 years, which would not justify exercise of such power. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of Gohil Jesangbhai Raysangbhai & Ors. v. State of Gujarat & Another (supra). Moreover, as submitted and contended by learned Advocate Shri Bhargav Karia, the petitioner was having the status of agriculturist vide Entry No. 2684 since 1982 which has not been cancelled. This aspect does not seem to have been considered though the matter was remanded earlier by the High Court. Further, as discussed above, the aspect of delay in exercise of power and reasonable period has to be considered in light of the settled legal position.
24. Therefore, having regard to the facts and circumstances as well as the judicial pronouncements including the judgment of the Hon'ble Page 15 of 17 C/SCA/13007/2012 JUDGMENT Apex Court regarding the word 'reasonable period' for exercise of such powers, it is evident that it cannot be said that the powers have been exercised within a reasonable period and therefore it could not be justified. Moreover, if such powers are permitted to be exercised at such a belated stage as sought to be canvassed by learned AGP, then it would amount to allowing unsettling the settled position after the long lapse of period which may cause prejudice as the parties may have altered their position. The transaction which may have taken place, may have led to further transaction and the rights of the third party may have been created which would be affected and again they may not be before the court or the authority in the proceedings. Further, the persons, who have purchased the land and / or have altered their position pursuant to such transaction may have incurred further expenses for the development of the land. Therefore, it would not justify exercise of such powers at belated stage.
25.Therefore as by the very nature of things and the circumstances which have changed, exercise of such suo motu powers by notice and thereafter by Revision by the authorities, cannot be sustained, and therefore, the impugned order passed in the Revision Applications by the Secretary (Appeals), Revenue Department, Ahmedabad (at Annexure-K) deserves to be quashed and set aside Page 16 of 17 C/SCA/13007/2012 JUDGMENT and is accordingly quashed and set aside.
The present group of petitions are accordingly stands allowed. Rule is made absolute. No order as to costs.
(RAJESH H.SHUKLA, J) J.N. W Page 17 of 17