Gujarat High Court
Bhavnaben Shialeshkumar Soni vs State Of Gujarat on 9 February, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/292/2016 JUDGMENT DATED: 09/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 292 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER 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 ? Yes
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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BHAVNABEN SHIALESHKUMAR SONI & 1 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
for the Petitioner(s) No. 1,2
MR ABHAYKUMAR P SHAH(3093) for the Petitioner(s) No. 1,2
MS DHWANI TRIPATHI, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 09/02/2022
ORAL JUDGMENT
1. By filing this petition, the petitioners have prayed to quash and set aside the order dated 16.8.2013 passed in RTS/ Appeal/ Case/No.4/13 by Deputy Collector and further be pleased to quash and set aside order dated 21.11.2014 of Collector, Mahesana, passed in Revision Application No.227 of 2013 and order dated 21.9.2015/9.10.2015 passed by learned SSRD bearing No.MVV/HKP/MSN/86/14 with all consequential effects in favour of the petitioners.
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2. The facts of the case are that the petitioners are husband and wife residing together at Village Satlasna. It is the case of the petitioners that petitioner no.1 is daughter of an "agriculturist" and is holding agricultural land jointly at village- Madana-Gadh under Account No.491. It is also the case that on 9.8.2000, Mamlatdar, Palanpur, issued certificate certifying that petitioner no.1 is an "agriculturist". Petitioner No.1, then purchased land bearing Survey Nos. 579/p A-00-35-41 Aare at Mouje Stlasana vide registered sale deed dated 11.10.2000 bearing Index No.987. On 17.10.00 Revenue Entry No.2596 was mutated recording the said transactions and the same was certified on 12.12.2000.
2.1 On account of family arrangement, on 12.11.2001, the land in question was recorded in the name of petitioner no.2 (husband). Revenue Entry No.2735 was mutated and the same was certified 21.12.01. Thereafter, petitioner No.2 has purchased adjoining land bearing Survey No. 578 A-0-32-38 Aare vide registered sale deed dated 30.7.2002 bearing Index No. 681. On 12.08.02 Revenue Entry No. 2842 was mutated in this regard and the same was certified on 01.01.03. On 8.4.2003, Mamlatdar, Satlasana ordered to consolidate land bearing Survey No. 578 and 579/p and numbered as new Survey No.578. On 23.07.2003, Revenue Entry No.2962 was mutated and was certified on 03.09.2003. Thereafter, petitioner No.2 purchased land bearing Survey No.120 admeasuring A-0-47-55 sq.mtr. at Moje Satlasana on 15.5.2003. On 02.06.03 Revenue Entry No. 2941 was mutated and was certified on 21.07.03.
Page 2 of 14 Downloaded on : Wed Feb 09 21:00:15 IST 2022C/SCA/292/2016 JUDGMENT DATED: 09/02/2022 2.2 It also the case of the petitioners that the petitioners applied for NA permission for residential purpose of consolidated Survey No.578, which was granted by TDO, Satlasana on 12.7.2007. On 16.07.07, Revenue Entry No.3837 was mutated and certified on 17.08.07. It is also the case of the petitioners that this entry was not challenged at the relevant time. On 12.10.2007, TDO sanctioned revised construction permission, which change is mutated vide Revenue Entry No.3917 on 29.10.2007 and it was certified on 10.12.2007. This entry was also not challenged at the relevant time. Thereafter, the petitioners have again applied for further revised N.A. permission for residential cum agricultural small godown purpose. Lay out plan was sanctioned by Deputy Town Planner on 28.8.2012 and revised NA permission was granted vide Resolution dated 10.9.2012, which came to be mutated vide entry no.5978 on 5.12.2012.
2.3 After about 13 years, on 12.2.2013, the Collector directed the Prant Officer, Kheralu to register case as Appeal under Rule 108 (5) of GLR Rules to cancel the Revenue entries No. 2596, 2735 and 5684, 5564. Before issuing such directions no hearing was provided to the petitioners. On 16.8.2013, Deputy Collector, Kheralu allowed said Appeal by treating "the transaction as violative of section 63 of Bombay Tenancy & Agriculture Land Act" and ordered to cancel the revenue entries no. 2596, 2735, 2842, 2941, 5564 and 5684 and directed the Mamlatdar and ALT, Satlasana, to initiate proceedings under section 84 (C) of Tenancy Act for the breach of section 63 of the Tenancy Act.
Page 3 of 14 Downloaded on : Wed Feb 09 21:00:15 IST 2022C/SCA/292/2016 JUDGMENT DATED: 09/02/2022 2.4 On 10.10.2013, petitioners have filed Vivad Appeal No.227/13 before Collector challenging the order of Deputy Collector, Kheralu dated 16.08.13. During the pendency of appeal status quo was granted. On 12.12.2014, the Collector rejected the Revision Application Revision Appeal No. 227/13. 2.5 On 15.12.2014, petitioners have preferred Revision Application 86/14 before SSRD challenging the order of Collector passed in 227/14 dated 21.12.14. On 16.1.2015, interim relief rejected in RTS Case No. 86/14. Thereafter, petitioners have approached to this Hon'ble Court by way of Special Civil Application No. 5466 of 2015. That this Hon'ble Court vide order dated 07.04.15 was pleased to issue direction of expeditious final disposal of Revision Application and till then directed to maintain status quo and accordingly the said petition was disposed of. It is also stated that learned SSRD rejected the Revision Application No. MVV/HKP/MSN/86 of 2014 by order dated 21.9.2015/9.10.2015. Being aggrieved by said order, the petitioner has preferred present petition.
3. Heard learned advocate Mr.Shah for the petitioners and learned AGP, Ms.Dhwani Tripathi for the respondent-State.
4. Mr.Shah, learned advocate for the petitioner submitted that the exercise of powers by the Collector and Prant officer suffers from vices of delay and latches as the transactions are of 2000 which are ordered to be cancelled in the year 2013 and that too without providing any opportunity to the petitioners to show cause. It is also submitted that the revenue entries which are questioned in Appeal by the Prant Officer / Deputy Collector were certified as per the Rules before 13 years and the same cannot be taken into Appeal without there Page 4 of 14 Downloaded on : Wed Feb 09 21:00:15 IST 2022 C/SCA/292/2016 JUDGMENT DATED: 09/02/2022 being any appellant on record and the Prant Officer grossly erred in treating the report of the Mamlatdar as Appeal and therefore exercise of powers under Rule 108 (5) of the Gujarat Land Revenue Rules suffers from vices of assumption of jurisdiction not vested into authority.
4.1 Mr.Shah further submitted that suo motu power of revision under the Gujarat Land Revenue Code or under the Tenancy Act, where period of limitation is not prescribed, should be exercised within reasonable period. In this view of the matter, when the decisions and observations by Hon'ble Apex Court as well as this Hon'ble Court are taken into account, it becomes clear that the proceedings are hit by unreasonable and inordinate delay. In the present case, span of almost 13 years is unreasonable, as held by Hon'ble Apex Court and this Hon'ble Court, and therefore, impugned action i.e. suo motu proceedings as well as impugned order suffers from vice of inordinate delay and the said action as well as the impugned orders are deserved to be set aside.
4.2 It is also submitted that the petitioners are relying upon the following judgements of the Hon'ble Apex Court as well as this Hon'ble court on the aspect of delay in initiating suo motu proceeding by the Government Authority, which vitiate the proceeding under the Gujarat Land Revenue Code as well as the Bombay Tenancy and Agricultural Lands Act :
1. Janardan D. Patel Vs. State of Gujarat, reported in 1997(1) GLR 50,
2. Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim, reported in 1997(6) SCC 71, Page 5 of 14 Downloaded on : Wed Feb 09 21:00:15 IST 2022 C/SCA/292/2016 JUDGMENT DATED: 09/02/2022
3. Bhaniben Makanbhai Tandel vs. State of Gujarat, reported in AIR 1991 GUJARAT 184,
4. Mangalbhai B. Prajapati vs. State of Gujarat, reported in 2001(1) GLR 242,
5. Premjibhai Nagjibhai, Heir and Legal representative Vs. State of Gujarat, order dated 08/01/2020 passed in Special Civil Application No. 7709/2006,
6. Patel Rameshbhai Ramabhai Vs. State of Gujarat, reported in 2008 (1) G.L.H. 298,
7. Evergreen Apartment Co-operative Housing Society vs. Special Secretary, Revenue Department, Gujarat State, reported in 1991 (1) GLR 113,
8. Ratilal Maganlal Intwala Vs. Special Secretary, order dated 28/06/2013, passed in Special Civil Application No. 341/1999,
9. Joint Collector Ranga Reddy District and another vs. D. Narsing Rao and others, reported in (2015) 3 SCC 695,
10. Dharmendra Pramukhbhai Patel Vs. Collector, order dated 06/02/2020 passed in Special Civil Application No. 16343/2017,
11. Pushpaben Prabhudas Makheja Vs. State of Gujarat, ordered dated 09/03/2017 passed in Special Civil Application No.22224/2005.
4.3 It is further submitted that land bearing Survey No. 578 was converted as non-agricultural land in the year 2007 and therefore as per the Circulars of Government of Gujarat dated 03/01/1968, 29/04/1980 and 03/02/2005 the provision of Tenancy Act would not be apply to the N.A. land. In view of above, it is prayed to allow present petition.Page 6 of 14 Downloaded on : Wed Feb 09 21:00:15 IST 2022
C/SCA/292/2016 JUDGMENT DATED: 09/02/2022
5. On the other hand, Ms.Tripathi, learned AGP has supported the impugned order and submitted that no error of law or facts is committed by the authorities below. She further submitted that the impugned order is just and proper and this Court may not interfere. She prayed to dismiss present petition.
6. Heard learned advocates for the parties and perused the material placed on record and the judgments cited at bar.
6.1 In the case of Janardan D. Patel Vs. State of Gujarat reported in 1997 (1) GLR 50, this Hon'ble Court has held as under in Para7 & 8:-
"7. A reference also deserves to be made to the Division Bench ruling of this Court in the case of Bhagwanji Bawanji Patel v. State of Gujarat & Anr., reported in 1971 GLR 156. It has been held therein that the revisional powers under Sec. 211 of the Code have to be exercised within the reasonable period of one year from the date of the order or action complained of. Sitting as a single Judge, the aforesaid Division Bench ruling of this Court is binding to me. Even otherwise, I am in respectful agreement therewith.
8. It cannot be gainsaid that revisional powers under the relevant provisions contained in Rule 108(6) of the Rules are akin to those contained in Sec. 211 of the Code. What applies to Sec. 211 of the Code would apply with equal force to Rule 108(6) of the Rules."
6.2 In the case of Mangalbhai B. Prajapati vs. State of Gujarat, reported in 2001(1) GLR 242, this Hon'ble Court has held as under in Para-6 to 10:-
"6. In view of the above order passed by the Deputy Collector, the petitioner herein approached Gujarat Page 7 of 14 Downloaded on : Wed Feb 09 21:00:15 IST 2022 C/SCA/292/2016 JUDGMENT DATED: 09/02/2022 Revenue Tribunal by preferring Revision Application No. 383 of 1986. Respondent No. 3 herein also preferred Revision Application No. 442 of 1986 before the Tribunal being aggrieved by the order passed by the Deputy Collector. The Tribunal by a common judgment, dismissed the Revision Application on 28-6-1988. It appears that the order was passed without hearing the respondent No.3. The matter was remanded. Further, on remand, the order was confirmed by the lower authority. It is against the order passed by the Tribunal this petition is preferred.
7. It is required to be noted that in the instant case, the sale-deed was executed on 19-5-1978 and it was registered with the concerned authorities. It is submitted that Sec. 84C could have been invoked by the Mamlatdar within a reasonable period, and it is not open for the Mamlatdar to exercise the powers suo motu at any time. Sub-clause (1) of Sec. 84C of the Tenancy Act is relevant for the purchase, which reads as under:-
"84C(1). Where in respect of the transfer or acquisition of any land made on or after the commencement of the Amending Act, 1955 the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes Invalid under any of the provisions of this Act, the Mamiatdar shall issue a notice and hold an inquiry as provided for in Sec. 84B and decide whether the transfer or acquisition is or is not Invalid."
8. Thus, the Mamlatdar can issue notice and hold inquiry as provided for in Sec. 84B of the Act. No period of limitation is prescribed in Sec. 84C or there is no other provision for limitation within which the powers can be exercised.
9. Mr. Patel drew the attention of the Court to a decision of the Apex Court in the case of Mohamad Kavi Mohamad Amin V/s. Fatmabai Ibrahim, reported in 1997 (6) SCC 71. In that case, two sale deeds were executed on 11-12-1972 and 28-12-1972 whereby the appellant purchased land admeasuring 3 Acres 6 Gunthas and 3 Acres and 18 Gunthas. The record of rights reveal that Page 8 of 14 Downloaded on : Wed Feb 09 21:00:15 IST 2022 C/SCA/292/2016 JUDGMENT DATED: 09/02/2022 on 14-3-1973 there was mutation entry. In September 1976, the Mamlatdar of the area concerned initiated a suo motu inquiry under Sec. 84C of the Act. In paragraph 2, the Court has considered the submission that the transfer took place as early as in the year 1972 and suo motu inquiry was started in by the Mamlatdar in September 1973. The Apex Court pointed out that if the sale deeds are declared to be invalid, the appellant is likely to suffer irreparable injury because he has made investment after the aforesaid lands are purchased. The Apex Court considered the decision in case of State of Gujarat V/s. Patil Raghav Natha (Patil sic.. Patel), reported in 1969 GLR 992 (SC) : 1969 (2) SCC 187 : AIR 1969 SC 1297, and observed as under:
"In this connection, on behalf of the appellant reliance was placed on a judgment of Justice S. B. Majmudar (as he then was in the High Court of Gujarat) in State of Gujarat V/s. Jethamal Bhagwandas Shah, disposed of on 1-3-1990, where in connection with Sec. 84C itself it was said that the power under the aforesaid section should be exercised within a reasonable time. This Court in connection with other statutory provisions, in the case of State of Gujarat v. Patil Raghav Natha (Patil sic. Patel) and in the case of Ram Chand V/s. Union of India has impressed that where no time-limit is prescribed for exercise of a power under a statute, it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time.
10. In view of what is stated hereinabove, without discussing the other aspects, the matter is required to be allowed only on the ground that the authority exercising powers under Sec. 84C of the Act has not exercised the powers within reasonable time. In view of the settled position by several judgments, this petition is allowed. Rule is made absolute. No order as to costs. Impugned orders are quashed."
6.3 In the case of Bhaniben Makanbhai Tandel vs. State of Gujarat, reported in AIR 1991 GUJARAT 184, this Hon'ble Court has held as under in para-5:-
Page 9 of 14 Downloaded on : Wed Feb 09 21:00:15 IST 2022C/SCA/292/2016 JUDGMENT DATED: 09/02/2022 "5. Here, in the present case also the proceedings are initiated in 1975 and it is clear from the Tenancy Case Nos. 84/C 1347 / 76 that after the show cause notice the case was initiated by the Mamlatdar-cum-A.L.T. In that view of the matter infact this case is worth on the point of delay that the aforesaid case before the Justice Majumdar.
It may also be mentioned that the parties have invested much amount and that they are in possession of 29.27 acres of land since more than 22 years. Under these circumstances, the petition deserves to be allowed with the suo motu powers on the ground of (sic) when have been exercised after the delay of 7 years from the date of sale deed and accordingly all the orders passed by the Tenancy AL.L.T. Mamlatdar in Case No.84/c 134/76 as well as the order passed by the Dy. Collector in Tenancy Appeal No.66/78 and also in the case of T.N.B. S.5 of 79 by the Gujarat Revenue Tribunal are quashed and set aside. Accordingly, rule is made absolute. No order as to costs."
6.4 Hon'ble Apex Court, in the case of State of Gujarat vs. Patel Raghav Natha and Others, reported in AIR 1969 SC 1297, has held that if the statute does not provide any specified time limit, then the action has to be initiated by the authority within a reasonable time and the reasonable time should be one year, and that if the authority has not taken any action within reasonable time, then such action is vitiated by the vice of delay and laches.
6.5 In case of Joint Collector Ranga Reddy District and another vs. D. Narsing Rao and others, reported in (2015) 3 SCC 695, the Hon'ble Apex Court has held that even when there is no period of limitation prescribed for the exercise of any power, revisional or otherwise} such power must be exercised within a reasonable period and that if the power is allowed to be exercised it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties.
Page 10 of 14 Downloaded on : Wed Feb 09 21:00:15 IST 2022C/SCA/292/2016 JUDGMENT DATED: 09/02/2022 6.6 This Hon'ble Court in the case of Evergreen Cooperative Housing Society vs. Special Secretary, Revenue Department, Gujarat State, reported in 1991 (1) GLR 113 has held that if power is conferred on the officer under one enactment, it cannot be exercised while dealing with the question under another enactment, especially when the revenue officers are empowered to act under various enactments. It is also held that the power of revision must be exercised within a reasonable time.
6.7 In the case of Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim, reported in (1997) 6 SCC 71, the Apex Court, while considering the judgment of this Court in the case of State of Gujarat vs.Jethmal Bhagwandas Shah (Special Civil Application No.2770 of 1979), with respect to the power under Section 84C of the Bombay Tenancy and Agricultural Lands Act, 1976, held that wherever a power is vested in a statutory authority without prescribing any time limit, such power should be exercised within a reasonable time. The Hon'ble Apex Court in the said judgment reiterated the principles laid down by the Hon'ble Apex Court in case of State of Gujarat vs. Patil Raghav Natha (supra) and in the case of Ram Chand vs. Union of India, reported in (1994) 1 SCC 44.
7. In view of above legal pronouncements regarding exercise of revisional powers and limitation, on perusal of the factual aspects of this case, it appears that the revenue authority has suo motu exercised the power of revision in the year 2013 against the entry which was made in the year 2000. It is also an admitted fact that the certificate was issued in the Page 11 of 14 Downloaded on : Wed Feb 09 21:00:15 IST 2022 C/SCA/292/2016 JUDGMENT DATED: 09/02/2022 name of petitioner no.1 as she is daughter of an "agriculturist". Of course, in such certificate, Annexure-B, page 36, dated 9.8.2000, her name is shown as Mrs.Bhavnaben Shaileshkumar Soni. It is an admitted fact that before marriage name of a girl is followed by name of her father, however, after marriage name of husband is written after the name of a lady. Merely due to such change, one do not lose her status as an "agriculturist". Meaning thereby, if an agriculturist lady marries to a non-agriculturist, she do not lose her status of an "agriculturist". As per the latest amendment in the Hindu Succession Act, now daughter is to be treated as a co-parcener in father's property. Therefore, exercise of revisional powers by the authority only on the basis that husband of the petitioner is not an "agriculturist" is not proper. The status of petitioner no.1 Bhavnaben as an "agriculturist" do not come to an end, one her getting married with Shaileshkumar Soni, who is a non-agriculturist. The authority has lost sight of the fact that the Certificate clearly reveals that her father was an "agriculturist" and she being a daughter has been given the status of an "agriculturist". Therefore, the basis for taking the entry into revision is baseless.
8. It is also pertinent to note that the petitioners purchased land thereafter on the basis of such certificate, which has been converted into Non-Agricultural land and, in this regard, learned advocate for the petitioners has relied upon a Government Resolution of 3.1.1968, which is produced along with the written arguments. Government Resolution dated 3.1.1968 reads as under:-
Page 12 of 14 Downloaded on : Wed Feb 09 21:00:15 IST 2022C/SCA/292/2016 JUDGMENT DATED: 09/02/2022 "CIRCULAR OF GOVERNMENT A question has been raised whether the provisions of Section 63 and 84-C of Bombay Tenancy and Agricultural Lands Act, 1948 would apply to those lands which had been permitted to be used for N.A. purposes under Section 65 of the Lands Revenue Code. After careful consideration Government is pleased to clarify that the provisions of the Bombay Tenancy and Agricultural Lands Act will not apply to lands which are converted into N.A. se with the permission of the Collector/District Development Officer and the N.A. use of such lands has been commenced.
By order and in the name of Governor of Gujarat.
Sd/-
(C.M.JOSHI)
Revenue Secretary to the Govt of
Gujarat, Revenue Department."
9. In view of aforesaid Government Circular itself, when N.A.permission has been granted, there cannot be any application of the provisions of the Bombay Tenancy and Agricultural Lands Act to such land. At this juncture, it is also pertinent to observe that along with written arguments learned advocate for the petitioner has also placed on record, another Government Circular No.GNT-1991-M.R.-12-Z dated 3.2.2005 of the Revenue Department reiterating earlier Circular of 1968, referred to herein above. In the Circular of 2005 also, the Government has clearly directed all the revenue authorities to abide by Government Circular of 1968. Thus, provisions of Section 63 and 84-C of Bombay Tenancy and Agricultural Lands Act, 1948 would not apply to those lands which had been permitted to be used for N.A. purposes under Section 65 of the Lands Revenue Code. On this count also, exercise of power by the revenue authority is devoid of merits and the same is not sustainable in the eyes of law.
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10. In view of the fact that suo motu exercise of power has been done after almost 13 years, the same is beyond limitation, as observed in various decisions, referred to herein above. Therefore, on this ground also, the impugned orders need to be set aside.
11. Accordingly, this petition is allowed. Impugned order dated 16.8.2013 passed in RTS/Appeal/ Case/No.4/13 by Deputy Collector, order dated 21.11.2014 of Collector, Mahesana, passed in Revision Application No.227 of 2013, and order dated 21.9.2015/9.10.2015 passed by learned SSRD bearing No.MVV/HKP/MSN/86/14 are quashed and set aside. The revenue authorities are directed to give consequential effects of this order in favour of the petitioners. Rule is made absolute accordingly with no order as to costs. Direct service is permitted.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 14 of 14 Downloaded on : Wed Feb 09 21:00:15 IST 2022