Gujarat High Court
Pranavbhai Bhadrasehbhai Kagalwala vs State Of Gujarat on 15 June, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/17379/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17379 of 2016
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PRANAVBHAI BHADRASEHBHAI KAGALWALA
Versus
STATE OF GUJARAT
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Appearance:
VIRAL K SHAH(5210) for the PETITIONER(s) No. 1,2
MR MANAN MEHTA, AGP (1) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 15/06/2018
ORAL ORDER
Heard learned advocate Mr.Viral Shah for the petitioners and learned Assistant Government Pleader Mr.Manan Mehta for the respondent - State and its authorities.
2. By means of present petition, the petitioners have challenged order dated 30th August, 2016 passed by the Secretary, Revenue Department (Appeals), Ahmedabad which is passed under suo motu exercised under Section 211 of the Gujarat Land Revenue Code. By the said order, the said revisional authority upheld and okayed the proposal dated 18th August, 2008 made by the Collector for cancellation of non-agricultural permission. The Collector had issued show-cause notice dated 18th February, 2016 for taking order of non-agricultural permission dated 18th August, 2008 in the revision for cancelling the same, which proposal was confirmed by the aforesaid order dated 30th August, 2016 by the Secretary, Revenue Department.
Page 1 of 8 C/SCA/17379/2016 ORDER3. The non-agricultural permission was in respect of the land bearing old Survey No.214, new Survey No.106/2 at Village Vesu, Taluka & City Surat, Town Planning Scheme No.2 (Vesu-Bharthana-Vesu), Final Plot No.141 admeasuring 2,248 sq. mtrs., which was allowed to be converted into non-agriculture as per order dated 18th August, 2008 by the Collector, Surat. At the outset, it could be noticed that non- agricultural permission was granted on 18th August, 2008. The Collector issued show-cause notice for taking it into suo motu proceedings on 18th February, 2016. Thus the show-cause notice was issued after eight years.
3.1 It may be stated here for completion of narration of facts that the show-cause notice dated 18th February, 2016 was challenged by the petitioners by filing Special Civil Application No.5460 of 2016 in which this Court by order dated 01st August, 2016 directed the Special Secretary, Revenue Department (Appeals), to decide on the show-cause notice and the petitioners were granted time to file reply to the show-cause notice. It was thereafter that the impugned order dated 30th August, 2016 came to be passed.
3.2 It would be quite relevant to bring out the extracts from the aforesaid order dated 01st August, 2016 passed in Special Civil Application No.6460 of 2016.
"3. It further deserves to be noted that earlier by a writ petition being Special Civil Application Page 2 of 8 C/SCA/17379/2016 ORDER No.14743/2012, present petitioners had approached this Court against the proceedings undertaken under the Gujarat Tenancy and Agricultural Lands Act, more particularly a show-cause notice issued under Section 76A of the said Act dated 21.09.2011, wherein the petition has been allowed. While allowing the said petition, this Court (Coram : Hon'ble Ms.Justice H.N.Devani) has observed thus:-
"5) It may be further noted that the subject land falls within the limits of the residential zone as per the sanctioned Preliminary Town Planning Scheme. Moreover, the predecessor of the petitioners had applied for development permission, which came to be granted by the Surat Municipal Corporation on 30.4.2008/28.7.2009 under sections 29, 34 and 49(1)(b) of the Gujarat Town Planning and Urban Development Act and sections 252 and 254 of the Bombay Provincial Municipal Corporation Act. On 18.8.2008, the competent authority also granted non-agricultural permission in respect of the subject land and on 19.10.2011, the Surat Municipal Corporation granted permission for construction of high rise building on the subject land.
6) On 21.9.2011, the Deputy Collector, City Prant, issued the impugned show-cause notice under section 76A of the Tenancy Act taking the order dated 21.5.2007 made by the Mamlatdar in suo motu revision. Being aggrieved, the petitioners have filed the present petition challenging the said notice
12) The above decision would be squarely applicable to the facts of the present case wherein revisional power is sought to be exercised under section 76A beyond a period of one year from the date of the order passed by the Mamlatdar and A.L.T. Under the circumstances, it is not permissible for the Collector to exercise revisional powers at this stage. Besides in the said petition also it was a show cause notice under section 76A of the Tenancy Act which was subject matter of challenge, and the Division Bench had entertained and allowed the petition. The contention that the present petition against a show cause notice ought not to be exercised does not merit acceptance, inasmuch as limitation is also a jurisdictional issue. The decision in the case of Radhesyham Laluram Kabra v. Shantilal Manilal Solanki, (supra) would not be applicable to the facts of the Page 3 of 8 C/SCA/17379/2016 ORDER present case, inasmuch as, in the said case the record and proceedings had been called for within the period specified under section 76A of the Tenancy Act.
13) Moreover, as rightly submitted by the learned advocate for the petitioners, the show-cause notice has been issued against a dead person despite the fact that the names of the subsequent purchasers have already been entered in the record of rights. Thus, the impugned show-cause notice is also bad on the ground that the same has been issued only against a dead person.
14) In the light of the above view taken by this court, it is not necessary to enter into the merits of the other contentions raised by the learned advocate for the petitioners, namely, that the order passed by the Mamlatdar had already been taken in review by the Deputy Collector the same could not have been taken in revision, and that the land having already been converted into non-agricultural land, does not fall within the purview of the provisions of the Tenancy Act.
15) In the light of the aforesaid discussion, the petition succeeds and is, accordingly, allowed. The impugned show-cause notice dated 21st September, 2011 issued by the Deputy Collector under section 76A of the Tenancy Act, is hereby quashed and set aside. Rule is made absolutely accordingly with no order as to costs."
"4. Considering the aforesaid judgment as well as the judgment of the Division Bench of this Court reported in 2016 (2) GLR 1021, though this Court can exercise its jurisdiction under Article 226 of the Constitution of India, as it prima facie appears that the notice is issued without considering the judgment of this Court and even without examining whether such action which is within reasonable time as held by catena of decisions of the Apex Court as well as this Court. The Special Secretary, Revenue Department (Appeals) shall permit the petitioners to be the parties to the impugned show-cause notice and take their reply on record, which shall be filed by the petitioners on, or before 09th August, 2016 and shall decide the said show-cause notice keeping in mind the observations made by this Court."
4. In the impugned order passed thereafter, the Page 4 of 8 C/SCA/17379/2016 ORDER Revisional Authority, however, permitted the Collector to proceed to to cancel the non- agricultural permission. The Revisional Authority did notice and take note of the aspect that proceedings taken out under Section 76 of the Tenancy Act were set-at-naught by this Court in the aforementioned writ petition, still however the Collector was given green signal to go ahead pursuant to show-cause to cancel the non-agricultural permission dated 18th August, 2008.
5. While the evident merit aspect of setting aside of proceedings under the tenancy laws by virtue of judgment of this Court dated 01st August, 2016 in Special Civil Application No.5460 of 2016, has direct bearing and stands in support to the case of the petitioner in respect of his challenge to the show- cause notice, and that the show-cause notice and the impugned order of the Revisional Authority, are liable to set aside on the said count, the another conspicuous facet is that the Collector issued notice dated 18th February, 2016 seeking to take in review the non-agricultural permission granted on 18th August, 2008, which was thus after passage of more than eight years. And the Revisional Authority countenanced the delay and notwithstanding the delay, permitted the Collector to proceed pursuant to show- cause notice.
5.1 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 Page 5 of 8 C/SCA/17379/2016 ORDER authority is required to exercise its powers within a reasonable time even though no time limit may have been prescribed for such exercise. 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 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 7 years was without jurisdiction. Similar, proposition was laid down in Rajul Cooperative Housing Society Ltd. v. State [1984 GLH 968].
5.2 The Supreme Court in Santoshkumar Shivgonda Patil v. Balasaheb Tukaram Shevale [(2009) 9 SCC 352] stated the law as under.
"It seems to be fairly settled that if a statute does not prescribe the time-limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu of otherwise, it is plain that exercise of such power within reasonable time is inherent therein." (Para 11) 5.3 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 Page 6 of 8 C/SCA/17379/2016 ORDER 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 19 years in exercising suo motu powers by the Collector, Surat, by deciding suo motu proceedings No.05 of 2013 is yet another consideration rendering the petition liable to be dismissed.
5.4 The Division Bench of this Court in Bharatbhai Naranbhai Vegda v. State of Gujarat [2016 (2) GLR 1021], in the same set of facts held as under
to decide the show-cause notice.
"Taking in view, the above-referred well considered two decisions of this Court makes the position abundantly clear that if the action is to be initiated for setting aside of a transaction under the Ordinance by invoking Sec. 54 read with Sec. 75 of the Ordinance, it has to be within reasonable period. The above-referred two decisions are in respect of the cases wherein the powers were exercised and proceedings were initiated after 5 years and 17 years respectively, whereas in the present case, it is after more than 35 years. Hence, the initiation of the action itself can be said as beyond reasonable period and the bar of delay and laches could operate against the authority in initiation of the action and when the Page 7 of 8 C/SCA/17379/2016 ORDER ownership is changed during the period of delay, the bar for not taking action within reasonable period would also operate with more gravity against the authority in initiation of the action." (Para 10) "The bar of delay operates against the exercise of the jurisdiction or that the initiation of the action is beyond reasonable period as per the well-settled principles of law, the action can be said as without jurisdiction. If an action is without jurisdiction, as observed by the Apex Court in the above-referred decision in the case of State of Punjab v. Bhatinda District Co-op. Milk Producers Union Ltd., 2007 (11) SCC 363, the petition under Art. 226 of the Constitution can be maintained and the jurisdiction of this Court under Art. 226 of the Constitution can be invoked." (Para 12)
6. Given the above position of law, the infirmities in the reasoning of the Revisional Authority and its order writs large. After the delay of eight years, the proceedings could not be allowed by the Collector, that too when the tenancy proceedings were set aside as above. The impugned notice by the Collector and impugned order of the Revisional Authority passed with regard to the notice both book a manifest error of law.
7. In view of the above position of law, the impugned order dated 30th August, 2016 passed by the Revisional Authority setting aside order dated 18th August, 2008 by Collector, Surat, granting N.A. permission as well as notice dated 18th February, 2016 issued by the Collector, Surat, is hereby set aside.
Petition stands allowed.
(N.V.ANJARIA, J) Anup Page 8 of 8