Gujarat High Court
State Of Gujarat vs Daudbhai Ismailbhai Mansur on 3 April, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/8905/2014 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8905 of 2014
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STATE OF GUJARAT Versus DAUDBHAI ISMAILBHAI MANSUR ========================================================== Appearance:
MR MANAN MEHTA, AGP (1) for the PETITIONER(s) No. 1 MS KJ BRAHMBHATT(202) for the RESPONDENT(s) No. 2,3,3.1,3.2,3.3,3.4,3.5 MS VARSHA BRAHMBHATT(3145) for the RESPONDENT(s) No. 2 NOTICE SERVED(4) for the RESPONDENT(s) No. 4 UNSERVED EXPIRED (N)(9) for the RESPONDENT(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 03/04/2018 CAV ORDER Heard learned Assistant Government Pleader Mr.Manan Mehta for the petitioner - State and learned advocate Ms.Kalpna Brahmbhatt for the private respondents.
2. This petition filed under Article 227 of the Constitution, is directed against order dated 17th January,2 004 passed by the Secretary, Revenue Department (Appeals). Thereby the Revision Application No.137 of 2002 preferred by the private respondents herein came to be allowed by setting aside order dated 16th November, 2002 of Collector, Surat, in RTS Revision Application No.198 of 2000.
3. The relevant facts may be outlined. Private respondent Nos.2 and 3 herein purchased land bearing Page 1 of 7 C/SCA/8905/2014 CAV ORDER Survey Nos.65, 66 and 67 situated at Village Dumas, Taluka Choryasi, District Surat, from one Daudbhai Mansuri - respondent No.1 herein. The said transaction was entered into upon executing registered sale deed dated 29th May, 1989. Mutation Entry NO.3166 in the revenue records pursuant to the said transaction was effected on 14th September, 1992.
3.1 It appears that after period of eight years, Collector, Surat, started suo motu proceedings against the aforesaid Entry No.3166 by registering Revision Case No.198 of 2000. By order dated 15/16th November, 2002, the Collector cancelled the said Entry by holding that there was breach of Section 63 of the Bombay Tenancy & Agriculture Lands Act. The Collector further directed to initiate proceedings under Section 84-C of the Tenancy Act. These proceedings initiated in form of Case No.218 of 2002 came to be dropped by the Mamlatdar and Agriculture Lands Tribunal as per his order dated 23rd June, 2003.
4. It was against the aforementioned order dated 15/16th November, 2002 passed by the Collector that the Revision Application came to be filed by the private respondents. The Revision Application came to be allowed as per the impugned order, by which setting aside order of the Collector, confirmed the mutation of Entry No.3166.
5. The sole ground strikes fatal, obviating the necessity to go into the aspects of merits is that the State filed this petition to challenge the order Page 2 of 7 C/SCA/8905/2014 CAV ORDER of the revisional authority after long delay of one decade. No satisfactory explanation has been coming- forth from the petitioner - State which may justify the passage of 10 years which intervened the present challenge. The period of 10 years is too long and unreasonable delay to be countenanced in law.
5.1 In State of Gujarat v. Gamanbhai Maganbhai Patel being Special Civil Application No.9382 of 2014 decided on 12th December, 2014, facts were akin. State had filed petition after seven years without showing sufficient cause, therefor, this Court refused to entertain the petition. In Gamanbhai Maganbhai Patel (supra) this Court relied on decision of the Apex Court in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai [(2012) 5 SCC 157].
5.2 Noticing the following paragraphs, which may
be reproduced hereunder,
"We have considered the respective
arguments/submissions and carefully scrutinized the record. The law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the Court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the Legislature. At the same time, the Courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation." (Para 14) 5.2.1 It was viewed that liberal approach may be eschewed where rights of rival party have intervened, "What needs to be emphasised is that even though a liberal and justice-oriented approach is required to Page 3 of 7 C/SCA/8905/2014 CAV ORDER be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost." (Para 23) 5.2.2 It was observed that making out of sufficient cause would depend upon facts.
"What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay." (Para 24) 5.2.3 The Apex Court stated unequivocally that the State is a litigant belonging to same class for the treatment and no different approach could be adopted.
"In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision-making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/ instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest." (Para 25) 5.3 The decision in Gamanbhai Maganbhai Patel (supra) was subjected to Letters Patent Appeal No.139n of 2016 which was dismissed by the Division Bench on 03rd March, 2016. The Letters Patent Bench held, Page 4 of 7 C/SCA/8905/2014 CAV ORDER "... ... ... inspite of opportunity given to the State of Gujarat failed to give proper explanation about 7 years of delay in challenging the order dated 29.7.2007 passed by Gujarat Revenue Tribunal in Revision Application No.41 of 2006. It also appears that order dated 27.9.2002 passed by Dy.Collector, Chorasiya Prant was also challenged before the Gujarat Revenue Tribunal after a delay of 4 years. Thus delay galores on the record at two stages. On the strength of order dated 27.9.2002, the parties have acted and ownership and possession were transferred to 3rd parties and different sale deeds were registered. It is trite that if inordinate delay remained unexplained in invoking extraordinary jurisdiction of High Court under article 226/277 of the Constitution of India the same would be fatal and rights created and crystalised in favour of parties ordinarily cannot be disturbed in absence of any glaring and gross illegality at the end of authorities below."
5.4 Therefore, when the state has whiled away 10 years in challenging the impugned order, only on the same ground, petition is liable to be dismissed.
6. Another aspect which taints the proceedings and the consequential orders with illegality, is that the suo motu powers came to be exercised by the Collector after eight years. This period of eight years is too long a time to be countenanced to permit a statutory authority to exercise suo motu powers. Right from the decision of the Apex Court in State of Gujarat v. Patel Raghav Natha [AIR 1960 SC 1297], the principle is well settled that statutory authority is required to exercise its powers within a reasonable time even though no time limit may have been prescribed for such exercise.
6.1 This law was reiterated by this Court in Bhagwanji Bawanji v. State of Gujarat [1971 GLR 156] and Ranchhodbhai v. State [25 (2) GLR 1225]. In case of Ranchhodbhai (supra), it was held that the Page 5 of 7 C/SCA/8905/2014 CAV ORDER proceedings initiated against the purchaser of the agricultural land allegedly in contravention of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, after a period of seven years was without jurisdiction. Similar, proposition was laid down in Rajul Cooperative Housing Society Ltd. v. State [1984 GLH 968].
6.2 In Dudhiben Muljibhai Patel v. State of Gujarat being Special Civil Application No.758 of 1997, decided on 26th February, 2016, the principle of requirement of exercise of powers by the authorities within reasonable time was reiterated, to observe "...it clearly emerges that the Deputy Collector exercised the powers after a long gap of 32 years. It is cardinal principle that any statutory power vested in an authority would be required to be discharged within a reasonable time, even if no period is prescribed for such exercise. Inordinate and unreasonable delay is treated as vitiating factor itself. The principle applies with force in respect of the powers exercised or functions discharged by the revenue authorities under the revenue jurisdiction and they are not allowed to upset the action taken long back which may have resulted into vesting of rights and creation of equities with passage of time". In the present case also the aforesaid ground of delay of eight years in exercising suo motu powers by the Collector, Surat, by deciding Revision No.198 of 2000 is yet another consideration rendering the petition liable to be dismissed.
Page 6 of 7C/SCA/8905/2014 CAV ORDER 6.3 Yet another submission on behalf of the private respondents could not be brushed aside
lightly that while proceeding under the Bombay Land Revenue Code and while exercising powers under the revenue jurisdiction, the authorities have traveled to decide the aspect of another statute which was not permissible in law. Even on merits, it has to be noticed that Mamlatdar & ALT by order dated 23rd June, 2003 closed the proceedings under the Tenancy Act and directed withdrawal of notice under Section 84-C of the Act. In that order, the Mamlatdar noted that private respondents were already recognised and accepted as agriculturists in respect of another land bearing Survey No.97 at Gaviyar, Taluka Choryasi before their names were entered into the subject matter land bearing Survey Nos.65, 66 and 67 at Dumas, Taluka Choryasi.
7. For all the aforesaid reasons, the challenge fails. The petition is liable to be dismissed and the same stands dismissed. Notice is discharged.
(N.V.ANJARIA, J) Anup Page 7 of 7