Gujarat High Court
Devjibhai Kalabhai Patel vs Collector, Rajkot on 7 August, 2023
NEUTRAL CITATION
C/SCA/21269/2017 JUDGMENT DATED: 07/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21269 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DEVJIBHAI KALABHAI PATEL & 4 other(s)
Versus
COLLECTOR, RAJKOT & 2 other(s)
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Appearance:
R N JADAV(7688) for the Petitioner(s) No. 1,2,3,4,5
MR ROHAN SHAH, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 07/08/2023
ORAL JUDGMENT
1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have called in question order dated 21st August, 2017 passed by Special Secretary (Appeals), Revenue Department as well as order dated 09 th January, 2013 passed by Collector, Rajkot, whereby the order passed by Prant Officer, Morbi dated 15th July, 1999 approving conversion of the land from new tenure to old tenure pursuant to order dated 13 th May, 1999 passed by Mamlatdar, Tankara came to be cancelled and Page 1 of 13 Downloaded on : Sun Sep 17 00:22:18 IST 2023 NEUTRAL CITATION C/SCA/21269/2017 JUDGMENT DATED: 07/08/2023 undefined further ordering to vest the land in government pursuant to Section 79A of the Land Revenue Code.
2. Facts of the case can be stated as under.
2.1 Land bearing Survey No.705 of Village Tankara, Taluka Tankara, District Rajkot Paiki 16 Acres of land was initially alloted to one Shri Mohanbhai Sidabhai on Santhni basis subject to restrictions vide order dated 31st May, 1971. Proceedings being Sharatbhang Case No.72 of 1999 came to be initiated by Deputy Collector, Morbi under the provisions of Section 79A of the Gujarat Land Revenue Code. Pursuant to the said allotment order, revenue entry No.2100 was mutated in the revenue record on 23.02.1974 in the name of Shri Mohanbhai Sidabhai. Thereafter, Mamlatdar, Tankara, vide order dated 13.05.1999 converted the said land from new tenure to old tenure subject to payment of premium as per the Resolution of the State Government dated 21.08.1996.
2.2 The aforesaid order of Mamlatdar, Tankara, was taken into review by Deputy Collector, Morbi, wherein, Deputy Collector, Morbi, issued a show-cause notice dated 04.06.1999 to the original allottee for breach of the condition by registering Sharat Bhang Case No.72/1999. However, after considering the records and documents, Deputy Collector, Morbi, vide order dated 15.07.1999 upheld the order dated 13.05.1999 passed by Mamlatdar, Tankara. The revenue entry being No.5148 pursuant to the order passed by the Deputy Collector dated 15.07.1999 came to be mutated in the revenue record on 17.07.1999. Thereafter, the aforesaid land came to be purchased by the petitioners by way of five different registered sale deeds. Details of which are as under :-
(i) Land Acre 4-00 Gunthas, Sale deed No.4590 dated 19.07.1999 in favour of Devjibhai Kalabhai.Page 2 of 13 Downloaded on : Sun Sep 17 00:22:18 IST 2023
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(ii) Land Acre 3-00 Gunthas, Sale deed No.4587 dated 19.07.1999 in favour of Rajnikant Devjibhai.
(iii) Land Acre 3-00 Gunthas, Sale deed No.4586 dated 19.07.1999 in favour of Ashok Devjibhai
(iv) Land Acre 3-00 Gunthas, Sale deed No.4588 dated 19.07.1999 in favour of Kunvarben Devjibhai
(v) Land Acre 3-00 Gunthas, Sale deed No.4589 dated 19.07.1999 in favour of Pareshbhai Devjibhai.
2.3. Pursuant to the aforesaid five sale deeds, revenue entries came to be mutated and certified by the competent authority. The details of which are as under:-
(i) Entry No. 5150 dated 27.08.1999 with respect to sale deed No.4590
(ii) Entry No. 5153 dated 27.08.1999 with respect to sale deed No.4587
(iii) Entry No. 5154 dated 27.08.1999 with respect to sale deed No.4586
(iv) Entry No. 5155 dated 27.08.1999 with respect to sale deed No.4588
(v) Entry No. 5152 dated 27.08.1999 with respect to sale deed No.4589 2.4 Learned Collector, Rajkot, in exercise of suo motu powers, initiated the proceedings by registering Case No.Land/Revision/211-
Case No.5/10-11, by which the order of Mamlatdar, Tankara as well as Deputy Collector, Morbi, were taken into review.
2.5 In connection with the aforesaid suo motu proceedings, the petitioners have filed objections before the learned Collector, Rajkot. However, learned Collector, Rajkot, vide order dated 09.01.2013 quashed and set aside the allotment order dated 31.05.1971 passed Page 3 of 13 Downloaded on : Sun Sep 17 00:22:18 IST 2023 NEUTRAL CITATION C/SCA/21269/2017 JUDGMENT DATED: 07/08/2023 undefined by the Deputy Collector as well as the order dated 13.05.1999 passed by Mamlatdar, Tankara, converting the land into old tenure and also order dated 15.07.1999 passed by the Deputy Collector on the ground that the original allottee has not complied with the condition of the allotment order and the land was kept idle. Thus, under Section 79A of the Gujarat Land Revenue Code, 1879, the aforesaid order came to be passed.
2.6 Being aggrieved by the aforesaid order, the petitioners have approached learned Special Secretary (Appeals), Revenue Department by way of Revision Application being No.MVV/JMN/RJT/14/2013 along with the application for interim relief. The Special Secretary, (Appeals), Revenue Department, vide order dated 22.05.2013 granted interim relief in favour of the petitioners on the very first date. Thereafter, the said revision came up for hearing before the learned Secretary, who vide order dated 21.08.2017 rejected the Revision Application of the petitioners confirming the order passed by learned Collector, Rajkot.
2.7 Being aggrieved by the aforesaid order, the petitioners have approached this Court by way of present petition under Articles 226 and 227 of the Constitution of India for appropriate order.
3. I have heard learned advocate Mr.R.N.Jadav for the petitioners and learned Assistant Government Pleader Mr. Rohan Shah for the respondent- State.
4. Learned advocate Mr. Jadav for the petitioners while assailing the impugned orders, has made the following submissions :-
(i) Mr. Jadav has submitted that the impugned orders passed by the revenue authorities are under misconception of law and facts and therefore, the same are required to be quashed and Page 4 of 13 Downloaded on : Sun Sep 17 00:22:18 IST 2023 NEUTRAL CITATION C/SCA/21269/2017 JUDGMENT DATED: 07/08/2023 undefined set aside.
(ii) Mr. Jadav has principally submitted that initiation of suo motu proceedings after a huge delay itself is bad in law and therefore, any orders passed therein require to be quashed and set aside.
(iii) According to Mr. Jadav, learned advocate for the petitioners further submitted that, in the instant case, exercise of suo motu powers admittedly initiated after a period of 11 years. Therefore, the said period cannot be said to be reasonable. Under the circumstances, Mr. Jadav submitted that initiation of suo motu proceedings after unreasonable delay, cannot be said to be legal and valid and therefore, the impugned orders deserve to be quashed and set aside.
(iv) Mr. Jadav would submit that the land in question was initially granted to Shri Mohanbhai Sidabhai subject to Section 43 restrictions, however, the said restrictions were withdrawn and Mamlatdar, Tankara, vide order dated 13.05.1999 converted the said land from new tenure to old tenure. He further submitted that the order of Mamlatdar, Tankara, was taken into review by Deputy Collector, Morbi, in his suo motu powers. However, vide order dated 15.07.1999 after hearing all the necessary parties, upheld the order dated 13.05.1999 passed by Mamlatdar, Tankara.
(v) Mr. Jadav further submitted that the petitioners thereafter purchased the land in question on 19.07.1999 by relying upon the Entry No.5148 dated 17.07.1999 reflecting in the records of right. He also submitted that the present petitioners, who are the bonefide purchasers of the land in question by way of registered sale deed and thereafter, entries to that effect were Page 5 of 13 Downloaded on : Sun Sep 17 00:22:18 IST 2023 NEUTRAL CITATION C/SCA/21269/2017 JUDGMENT DATED: 07/08/2023 undefined also mutated. Thus, learned Collector, Rajkot, could not have initiated suo motu proceedings dated 16.08.2011 after a period of 11 years. Hence, the impugned orders passed by the revenue authorities are not only hit by the principles of delay and latches, but also hit by the principles of equity.
(vi) Mr. Jadav submitted that because of conversion order passed by the revenue authorities and thereafter, mutation of that conversion order in the revenue record, the petitioners were made to believe that the land in question was of old tenure and because of that, the petitioners purchased the land in question. However, because of this belated exercise of suo motu proceedings, now the petitioners in whose favour equity is created, are made to suffer. Thus, according to Mr. Jadav, the impugned orders passed by the revenue authorities deserve to be quashed and set aside.
(vii) Mr. Jadav further submitted that the order passed by the learned Collector, Rajkot, is without jurisdiction. To substantiate his contention, Mr. Jadav for the petitioners has placed heavy reliance on the Government Resolutions dated 11.03.1996 and 21.08.1996. In the said Resolutions, the Government has declared the Collector as competent authority to remove the restrictions of land and/or to convert the land into old tenure. By way of subsequent Resolution dated 11.03.1996, the Government has further modified the earlier Resolution, by which the Mamlatdar was given power to remove the restrictions and/or convert the land into old tenure and Deputy Collector has been invested with the power to review the same. Thus, according to Mr. Jadav, learned counsel for the petitioners, when Mamlatdar, Tankara, vide order dated 13.05.1999 converted the land into old tenure by Page 6 of 13 Downloaded on : Sun Sep 17 00:22:18 IST 2023 NEUTRAL CITATION C/SCA/21269/2017 JUDGMENT DATED: 07/08/2023 undefined collecting requisite payment and the Deputy Collector in Revision vide order dated 15.07.1999 confirmed the order of Mamlatdar, in that event, suo motu powers initiated by the learned Collector, Rajkot, is clearly without jurisdiction and therefore, the order passed by the learned Collector, Rajkot, requires to be quashed and set aside.
5. By making the above submissions, learned advocate for the petitioners has requested this Court to allow the present petition as prayed for.
6. Per contra, learned AGP Mr. Rohan Shah for the respondent authorities while supporting the impugned orders has made the following submissions :-
(i) Mr. Shah has vehemently opposed the present petition, inter alia, contending that, the impugned orders passed within the four corners of law and therefore, cannot be said to be illegal in any way. Hence, present petition deserves to be dismissed.
(ii) Mr. Shah further submitted that the order passed by Mamlatdar, Tankara, converting the land into old tenure was without jurisdiction. According to Mr. Shah, conversion of land from new tenure to old tenure can only be done by the Collector and thereby, the order passed by Mamlatdar, Tankara, said to be without jurisdiction and thereby, the same has been rightly quashed and set aside by the Collector.
(iii) Mr. Shah further submitted that order dated 13.05.1999 passed by the Mamlatdar from its inception is bad in law and is without jurisdiction of law and thereby, delay in initiating suo motu proceedings cannot be made the basis for not cancelling Page 7 of 13 Downloaded on : Sun Sep 17 00:22:18 IST 2023 NEUTRAL CITATION C/SCA/21269/2017 JUDGMENT DATED: 07/08/2023 undefined the order passed by the officer without jurisdiction.
7. By making the above submissions, learned AGP for the respondent authorities has requested this Court to dismiss the present petition.
8. We have heard learned advocates for the respective parties and have gone through the documents placed on record including the Government Resolutions dated 11.03.1996 and 21.08.1996 produced on record at the time of hearing.
9. No other or further submissions have been made by learned counsel for the respective parties, except what has been stated hereinabove.
10. Considering the submissions made by learned counsel for the respective parties, a short question that falls for consideration of this Court is, whether the impugned orders passed by the revenue authorities under Section 79A of the Gujarat Land Revenue Code. 1879 after a period of 11 years, can be said to be legal and valid ?
11. So as to decide the aforesaid question, it would be apt to take note of certain undisputed facts, which are as under:-
(i) The land in question was allotted to Shri Mohanbhai Sidabhai vide order dated 31.05.1971 with certain terms and conditions.
(ii) Mamlatdar, Tankara, vide order dated 13.05.1999 converted the said land into old tenure by accepting requisite payment. The Deputy Collector, Morbi, in exercise of suo motu powers registered Sharat Bhang Case No.72/1999 and took the order of Mamlatdar, Tankara in review. Considering the entire matter, Deputy Collector, Morbi, vide order dated Page 8 of 13 Downloaded on : Sun Sep 17 00:22:18 IST 2023 NEUTRAL CITATION C/SCA/21269/2017 JUDGMENT DATED: 07/08/2023 undefined 15.07.1999 was pleased to upheld the order of Mamlatdar, Tankara dated 13.05.1999.
(iii) Pursuant to the aforesaid, Revenue Entry No.5148 came to be mutated in the records of right and thereafter, the present petitioners purchased the land in question by way of different registered registered sale deeds dated 19.07.1999, for which entries being Nos.5150, 5153, 5154, 5155 and 5152 came to be mutated.
(iv) Admittedly, learned Collector, Rajkot, after a period of 11 years exercised suo motu powers against the order passed by Deputy Collector, Morbi, as well as Mamlatdar, Tankara and thereafter, vide order dated 09.01.2013, learned Collector, Rajkot, has cancelled the order dated 31.05.1971 (original allotment order), order dated 13.05.1999 (Mamlatdar, Tankara, converting the land into old tenure) and order dated 15.07.1999 (Deputy Collector, Morbi) whereby, upheld the order passed by Mamlatdar, Tankara on the ground that condition of the original allotment order was not satisfied and the land was kept idle.
12. Considering the aforesaid admitted facts, in my view, the orders passed by the revenue authorities cannot be said to be legal and valid. I say so, because admittedly, the learned Collector, Rajkot exercised suo motu powers after a gross delay of 11 years, which cannot be said to be reasonable time. At this stage, this Court cannot be under oblivion to the fact that the present petitioners, who have purchased the land in question by full consideration after Deputy Collector, Morbi, has upheld the order of Mamlatdar, Tankara, converting the land into old tenure and thereby, the petitioners in whose favour equity has been created, cannot be Page 9 of 13 Downloaded on : Sun Sep 17 00:22:18 IST 2023 NEUTRAL CITATION C/SCA/21269/2017 JUDGMENT DATED: 07/08/2023 undefined made to suffer for belated action initiated by Collector, Rajkot after a period of 11 years. The law in this aspect is well settled by catena of decisions that the revenue authorities cannot initiate proceedings beyond reasonable period of time. In the instant case, the delay is of 11 years and therefore, in my view, when no explanation whatsoever is given by the revenue authorities for explaining delay, said period cannot be said to be reasonable. Thus, on this count alone, present petition requires to be allowed. At this stage, it would be profitable to take note of the decision of the Division Bench of this Court in case of State of Gujarat Vs. Nagjibhai Ishwarbhai Patel delivered in Letters Patent Appeal No.1182/2022 & allied matters, wherein, the Division Bench of this Court has observed thus:-
"9. Having heard learned Assistant Government Pleader appearing for the appellant and having gone through the material on record, since the issue involved in the appeal is centering around one proposition as to whether authority can exercise discretion after unreasonable period of time and since this has been examined at length by learned Single Judge, we deem it proper to examine as to whether any irregularity has taken place or not.
10. Before dwelling said issue, few undisputed facts are not possible to be unnoticed:-
(1)xxx (2)xxx (3)xxx (4)xxx (5) Hon'ble Apex Court on such exercise of jurisdiction beyond reasonable period in the case of Satyan Vs. Deputy Commissioner and others reported in (2020) 14 SCC 210 has held:
12.1. Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy & Ors.2 - the question posed to be decided in the appeal is referred to in para 1 and the question has been answered in para 19. Both paras 1 and 19 are read as under:
"1. In all these appeals, the following question of law arises for consideration:
"Whether the Collector can exercise suo motu power under sub-section (4) of Section 50-B of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 Page 10 of 13 Downloaded on : Sun Sep 17 00:22:18 IST 2023 NEUTRAL CITATION C/SCA/21269/2017 JUDGMENT DATED: 07/08/2023 undefined at any time or such power is to be exercised within a reasonable time." .... .... .... .... .... "19. It is also necessary to note that the suo motu power was sought to be exercised by the Joint Collector after 13- 15 years. Section 50-B was amended in the year 1979 by adding sub-section (4), but no action was taken to invalidate the certificates in exercise of the suo motu power till 1989. There is no convincing explanation as to why the authorities waited for such a long time. It appears that subsection (4) was added so as to take action where alienations or transfers were made to defeat the provisions of the Land Ceiling Act. The Land Ceiling Act having come into force on 1-1-1975, the authorities should have made inquiries and efforts so as to exercise the suo motu power within reasonable time. The action of the Joint Collector in exercising suo motu power after several years and not within reasonable per;iod and passing orders cancelling validation certificates given by the Tahsildar, as rightly held by the High Court, could not be sustained." The ratio, thus, is that such suo moto powers have to be exercised within a reasonable period of time.
12.2. Situ Sahu & Ors. v. State of Jharkhand & Ors. 3 - the exercise of power in respect of transactions, which required prior 3 (2004) 8 SCC 340 sanction of the Deputy Commissioner was again observed to be one which had to be exercised within a reasonable period of time.
12.3. Chhedi Lal Yadav & Ors. v. Hari Kishore Yadav (Dead) through Legal Representatives & Ors.4- the view expressed is the same as in the aforesaid two judgments in para 13, as under: "13. In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the statute. In the case before us, we are clear that the action is grossly delayed and taken beyond reasonable time, particularly, in view of the fact that the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights."
12.4. Vivek M. Hinduja v. M. Aswatha & Ors.5- the provisions of the said Act were in issue, where suo moto action was sought to be taken in 1998, in respect of transactions of the vintage 1967, and this was held to be a long delay, which did not warrant the exercise of such power.
(6) Yet, another decision which we may not go un-noticed is the decision delivered by the Coordinate Bench of this Court in the case of Parkhanji Mulji Vs. Gujarat Revenue Tribunal reported in 2020 SCC OnLine Guj 3346, in which after analyzing entire Page 11 of 13 Downloaded on : Sun Sep 17 00:22:18 IST 2023 NEUTRAL CITATION C/SCA/21269/2017 JUDGMENT DATED: 07/08/2023 undefined proposition in terms of the issue of delayed exercise of revisional jurisdiction, Coordinate Bench has propounded that delayed exercise of revisional jurisdiction is not just and proper. We also deem it proper to reproduce concluding observations made by the Coordinate Bench hereunder:- "24. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions ortransactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; forotherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.
25. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellant-State to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. In as much as, the notice was issued as late as on 31st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed."
10. Thus, the Supreme Court, in Ranga Reddy (supra) made itself very clear that even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. What is important is the observation of the Supreme Court that simply describing an act or transaction to be fraudulent, will not extend the time for its correction to infinity; for Page 12 of 13 Downloaded on : Sun Sep 17 00:22:18 IST 2023 NEUTRAL CITATION C/SCA/21269/2017 JUDGMENT DATED: 07/08/2023 undefined otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority."
11. In view of the aforesaid discussion and in view of the undisputed position prevailing on record that suo- motto powers questioning the sale transaction of the year 1969 was sought to be reviewed in the year 2004 after about 30 years, we are of the considered opinion that there is no error committed by learned Single Judge who had set aside the proceedings so initiated on the ground of delay and rightly so. Hence, we are of the view that appeal is devoid of merit and it stands DISMISSED and judgment and order passed by the learned Single Judge in Special Civil Application No.9780 of 2018 dated 17.2.2020 is upheld. No order as to costs."
13. Considering the aforesaid principles of law and keeping in mind the facts of the present case, undisputedly exercise of suo motu powers initiated by the learned Collector, Rajkot, is after a period of 11 years and in the meantime, the petitioners have purchased the land in question by way of registered sale deeds and therefore, equity is also created in their favour and if the impugned orders are allowed to be operated, in that event, the petitioners, who have with bona fide intention, purchased the land in question after conversion of the land into old tenure by the competent authority, would be put under the serious prejudice and that cannot be allowed. Thus, the impugned orders passed by the revenue authorities cannot be allowed to be operated being barred by delay and latches. I answer this question accordingly.
14. For the foregoing reasons, present petition requires to be allowed and is hereby allowed by quashing and setting aside the impugned orders dated 21.08.2017 passed by Special Secretary (Appeals), Revenue Department as well as the order dated 09.01.2013 passed by learned Collector, Rajkot.
Sd/-
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