Gujarat High Court
Shah Arvindkumar ... vs State Of Gujarat - Through Secretary & 3 on 16 June, 2016
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/7690/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7690 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI
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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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SHAH ARVINDKUMAR DAULATKRISHNATHR'POA SHAILESH PARIKH &
3....Petitioner(s)
Versus
STATE OF GUJARAT - THROUGH SECRETARY & 3....Respondent(s)
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Appearance:
MR P P MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1 - 4
MS JYOTI BHATT, AGP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 16/06/2016
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C/SCA/7690/2011 JUDGMENT
ORAL JUDGMENT
1. The present petition has been filed by the petitioners, challenging the order dated 11.5.2011 passed by the Gujarat Revenue Tribunal as well as the order dated 9.2.2010 passed by the Deputy Collector (Annexures-N and L respectively).
2. Though the case has chequered history with the disputed facts, as regards the possession and title of the land in question, the present petition is decided, keeping in view the limited scope of Section 76A of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Tenancy Act") for exercising the powers of revision by the Collector. It appears that the application of the petitioners for removing the restrictions under Section 43 of the Tenancy Act in respect of the land in question was granted by the Mamlatdar by his order dated 20.11.1999 (Annexure-E). The said order was reviewed and confirmed by the Assistant Collector, Godra as per the endorsement made on 12.8.2000 below the said order. Thereafter, the matter was sent to the Government for review and the Government in Revenue Department directed the Collector, District Panchmahal at Godra to revise the order dated 20.11.1999 passed by the Mamlatdar, Kalol by the communication dated 17th October, 2002 (Annexure-I). The said communication/order was challenged by the Page 2 of 6 HC-NIC Page 2 of 6 Created On Tue Jun 21 01:47:45 IST 2016 C/SCA/7690/2011 JUDGMENT petitioners before this Court by filing the petition being Special Civil Application No.12327 of 2002, which was disposed of vide the order dated 13.1.2009. The relevant portion of the said order reads as under:-
"Such exparte unilateral decision of the higher authority imposed by the competent authority would not stand the test of law. Only on this ground said communication is quashed without in any manner limiting the powers of respondents to examine the legality of order passed by the Mamlatdar in accordance with law. All contentions of the petitioners are kept open."
3. It appears that pursuant to the said order passed by this Court, the Collector i.e. respondent No.2, after issuing show-cause notice dated 9.9.2009 to the petitioner, passed the order dated 9.10.2010 (Annexure-L) under Section 76A of the Tenancy Act, setting aside the order dated 20.11.1999 passed by the Mamlatdar, Kalol. Being aggrieved by the said order, the petitioners had filed the revision petition before the Revenue Tribunal, which has been dismissed by the impugned order dated 11.5.2011. (Annexure-N).
4. The learned Advocate Mr.Majmudar for the petitioners, relying upon the decision of the Division Bench of this Court in the case of Thakorbhai Tribhovandas Rao and Ors. Vs. State of Gujarat and Ors., reported in 1995(1) GLH 758 and on the proviso to Section 76A of the Tenancy Act, submitted that the revisional powers could Page 3 of 6 HC-NIC Page 3 of 6 Created On Tue Jun 21 01:47:45 IST 2016 C/SCA/7690/2011 JUDGMENT not have been exercised by the respondent No.2 after a period of one year as contemplated in the said proviso. He submitted that the order of the Mamlatdar was passed in the year 1999 and the said order is sought to be reviewed after a period of ten years by the respondent No.2 under the guise of the observations made by this Court in SCA No.12327 of 2002 filed by the petitioners, however, in the said order, this Court had kept all the contentions of the petitioners open, without limiting the powers of the respondents to examine and decide, in accordance with law, the legality of the order passed by the Mamlatdar.
5. The learned Counsel for the respondents has, however, submitted that since the respondent No.2 had reviewed the order of the Mamlatdar, pursuant to the order passed by this Court, no period of limitation as contained in the proviso to Section 76A of the Tenancy Act would apply.
6. As stated herein above, the legality of the impugned orders passed by the respondent Nos.2 and 4 is being examined only qua the provisions contained in Section 76A of the Tenancy Act as the respondent No.2 has reviewed the order of the Mamlatdar under Section 76A of the Tenancy Act. From the bare reading of the proviso to Section 76A of the Tenancy Act, it clearly transpires that the Collector could not have called for the record of any proceedings either suo motu or on the reference made by the State Government, after Page 4 of 6 HC-NIC Page 4 of 6 Created On Tue Jun 21 01:47:45 IST 2016 C/SCA/7690/2011 JUDGMENT the expiry of one year from the date of such order passed by the Mamlatdar or Tribunal. In the case of Thakorbhai Tribhovandas Rao and Ors. Vs. State of Gujarat and Ors.(supra), it has also been held as under:-
"It will be seen that no record can be called for by the Collector after the expiry of one year from the date of the order made by the Mamlatdar or the Tribunal, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of the proceedings of the Mamlatdar or Tribunal. The proviso to Sec. 76A would be applicable even in a case where a Reference is made by the State Government requiring the Collector to call for the record and proceedings for th e purpose of satisfying himself as to the legality or propriety of the order. The limitation prescribed by the proviso for the exercise of the revisional powers beyond the expiry of one year from the date of the order is clear and explicit and the Collector will have no revisional power to be exercised beyond the period of one year prescribed by the proviso to Sec. 76A."
7. So far as the facts of the present case are concerned, the respondent No.2 had sought to review the order passed by the Mamlatdar after the expiry of ten years of the said order and, therefore, such review was hit by the proviso to Section 76A of the Tenancy Act. It is true that this Court, while passing the order in the petition filed by the petitioners, had observed that the powers of the respondents to examine the legality of the order passed by the Mamlatdar in accordance with law was kept open, however, at the same time, all the contentions of the Page 5 of 6 HC-NIC Page 5 of 6 Created On Tue Jun 21 01:47:45 IST 2016 C/SCA/7690/2011 JUDGMENT petitioners were also kept open. It is needless to say that the respondent No.2 was required to act in accordance with law and keeping in view the provisions contained in the Tenancy Act. Since the proviso to Section 76A of the Tenancy Act does not allow the Collector to call for the record or to examine the legality of the order of the Mamlatdar or the Tribunal after the expiry of one year from the date of such order, the impugned orders passed by the Collector as well as the Revenue Tribunal are in violation of the said provision and, therefore, bad in law.
8. In that view of the matter, the impugned orders dated 11.5.2011 and 9.2.2010 deserve to be set aside and, are hereby set aside. The petition stands allowed accordingly. Rule is made absolute accordingly.
(BELA M. TRIVEDI, J.) vinod Page 6 of 6 HC-NIC Page 6 of 6 Created On Tue Jun 21 01:47:45 IST 2016