Gujarat High Court
State Of Gujarat vs Nagjibhai Ishwarbhai Patel on 13 September, 2022
Author: Ashutosh J. Shastri
Bench: Aravind Kumar, Ashutosh J. Shastri
C/LPA/1182/2022 ORDER DATED: 13/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1182 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 9780 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/LETTERS PATENT APPEAL NO. 1182 of 2022
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STATE OF GUJARAT
Versus
NAGJIBHAI ISHWARBHAI PATEL
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Appearance:
MR CHINTAN DAVE, ASSTT GOVERNMENT PLEADER for the Appellants
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 13/09/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)
1. This Letters Patent Appeal under Section 15 of the Letters Patent Act is filed against the judgment and order dated 17.2.2020 passed in Special Civil Application No.9780 of 2018, whereby learned Single Judge was pleased to set aside the impugned order dated 31.7.2008 and consequential orders by allowing the writ application.
2. Brief background of facts leading to filing of the present appeal is: the original writ applicant, i.e. respondent herein, is Page 1 of 14 Downloaded on : Sun Dec 25 01:42:45 IST 2022 C/LPA/1182/2022 ORDER DATED: 13/09/2022 an agriculturist and was carrying on agricultural activities. Respondent herein purchased agricultural land at village Kasampur, Taluka Karjan, bearing Revenue Survey No.282 Paiki-1 admeasuring H1-75-25 from one Mr. Dahyabhai Hirabhai Amin under a registered sale deed dated 6.3.1969. Said transaction was also later on mutated in the revenue record and entry has been made to that effect being revenue entry No.407 in village Form No.6, Form No.7/12 and Form No.8A. Said entry after due inquiry came to be certified on 28.4.1969. It is the case of the respondent- petitioner that while mutating the entry, office of the Mamlatdar had certified the same after verifying necessary documents and after carrying out proper process.
3. It is reflecting from the records that later on, agricultural lands of village Kasampur have been amalgamated under the provisions of Prevention of Fragmentation Act and as a result thereof, revenue Survey No.344 was renumbered as 282 Paiki-1 and later on, land in dispute was shown as 'new tenure' land in 7/12 extract, wherein name of respondent - petitioner is also reflecting. Even Talati-cum-Mantri also provided a certificate in that regard, in which it has been mentioned that no condition Page 2 of 14 Downloaded on : Sun Dec 25 01:42:45 IST 2022 C/LPA/1182/2022 ORDER DATED: 13/09/2022 has been breached. Copies of the said documents are attached to the memorandum of Special Civil Application compilation. Even during the course of implementation of the scheme, name of the respondent- petitioner remained in the revenue records in respect to the land in question. Neither appeal nor any revision came to be filed at any point of time against certification of entry No.407, which has been made in favour of respondent- writ applicant way back on 28.4.1969. It is further emerging from records that in the year 2004, respondent applied for conversion of the land from new tenure to old tenure, in which it was ordered to pay premium of Rs.1390/- within a period of 21 days. Said premium was also paid fully on 21.2.2004 and entry has also been effected by Mamlatdar, Karjan vide order dated 23.2.2004 and later on, same has also been certified. However, to the surprise and shock to respondent, Deputy Collector in exercise of suo moto power set aside the order passed by learned Mamlatdar dated 23.2.2004 vide order dated 26.8.2005 in Case No.59 of 2005 and erroneously arrived at a conclusion that sale deed executed way back in 1969 is illegal and in breach of the conditions and as such, an order came to be Page 3 of 14 Downloaded on : Sun Dec 25 01:42:45 IST 2022 C/LPA/1182/2022 ORDER DATED: 13/09/2022 passed by the Deputy Collector on 26.8.2005.
4. Later on, a case of breach of condition was also registered being Case No.2 of 2006 and show cause notice also came to be issued on 13.8.2006 in respect of mutation entry No.407, which was already certified way back in the year 1969. Without even considering the reply submitted by petitioner, order dated 31.7.2008 came to be passed where-under land of the writ applicant was ordered to be forfeited to the State authority. Being aggrieved by and dissatisfied with the same, a substantive appeal came to be filed before learned Collector, Vadodara mainly on the ground that petitioner is the lawful owner, in possession and enjoyment of the subject land for more than 40 years and he had purchased the said land under a registered sale transaction which had resulted in mutation of revenue record after due process of inquiry and as such, proceedings which had been initiated after unreasonable period of more than 30 years ought not to have been undertaken and as such, requested the Collector to set aside the order passed by the authorities below. However, learned Collector on 26.11.2008 did not accede to said request and rejected the stay application Page 4 of 14 Downloaded on : Sun Dec 25 01:42:45 IST 2022 C/LPA/1182/2022 ORDER DATED: 13/09/2022 and it is this order passed by learned Collector, which was challenged by writ applicant by invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.
5. Feeling aggrieved by and dissatisfied with the same, respondent- petitioner preferred a revision application before the State authority under Section 211 of the Bombay Land Revenue Code. But, vide order dated 21.9.2017, learned Secretary was also pleased to dismiss the revision application and thereby confirming the aforesaid orders. Being aggrieved by these orders, respondent- petitioner approached this Court by filing aforesaid Special Civil Application. Learned Single Judge after hearing the learned advocates at length and after considering the settled position of law on the issue of exercise of jurisdiction by authorities below was pleased to allow the petition vide judgment and order dated 17.2.2020 and it is this order passed by the learned Single Judge which is now subject matter of present appeal before us.
6. Learned Assistant Government Pleader Mr. Chintan Dave, Page 5 of 14 Downloaded on : Sun Dec 25 01:42:45 IST 2022 C/LPA/1182/2022 ORDER DATED: 13/09/2022 appearing on behalf of appellant has submitted that orders passed by the authorities below were just, proper and ought not to have been interfered with more particularly when concurrent finding of facts have been arrived at by the authorities below and therefore, only on the ground of delay, learned Single Judge ought not to have ignored the merits and having done so, order passed by the learned Single Judge deserves to be corrected.
7. It has been further contended that authorities were justified in passing the orders, more particularly when the original petitioner himself made an application for conversion in the year 2004 and it was at that stage respondent- authority claims to have alleged breach of condition and therefore suo motto proceedings had been initiated for cancellation of sale transaction and therefore, it cannot be said that any delay has taken place in exercising the suo motto jurisdiction by the authority.
8. Learned Assistant Government Pleader has submitted that decision which has been relied upon by learned Single Judge in respect of Special Civil Application No.10171 of 2008 is not Page 6 of 14 Downloaded on : Sun Dec 25 01:42:45 IST 2022 C/LPA/1182/2022 ORDER DATED: 13/09/2022 applicable in the background of facts which are prevailing on record and as such, there was hardly any reason to disturb the findings which have been arrived at by the authorities below, especially when there appears to be no violation of principles of natural justice. Hence, he prays for appeal being allowed and consequently to set aside the impugned order passed by the learned Single Judge. No other submissions have been made.
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) Original petitioner had purchased an agricultural land by registered sale deed on 6.3.1969 and it is not in dispute that Page 7 of 14 Downloaded on : Sun Dec 25 01:42:45 IST 2022 C/LPA/1182/2022 ORDER DATED: 13/09/2022 original petitioner was an agriculturist. It is also emerging from the records that on registration of sale deed, revenue records came to be mutated by making entry No.407 and after due process of inquiry and after examining relevant papers, competent authority certified the said entry way back on 28.4.1969. Thus, in substance, the sale transaction had attained its finality way back in the year 1969 itself.
(2) A further fact is also emerging from the records that original petitioner had applied in the year 2004 seeking conversion of the land from new tenure to old tenure and at that point of time, authority had determined the premium amount which was ordered to be paid within 21 days and it is is not in dispute that full payment was made by petitioner on 21.2.2004 and entry to that effect has also been certified on 23.2.2004 and it is only after that episode, Deputy Collector assumed power and passed an order on 26.8.2005, by arriving at a conclusion that sale deed executed way back in 1969 is illegal and there was breach of conditions and this incident has given rise to a successive litigation, in which respondent- petitioner was constrained to challenge. On the basis of this undisputed Page 8 of 14 Downloaded on : Sun Dec 25 01:42:45 IST 2022 C/LPA/1182/2022 ORDER DATED: 13/09/2022 version, it appears that Deputy Collector had assumed powers after a period of about 30 years to doubt the sale transaction and when confronted with such situation, learned Single Judge has examined the said issue of exercise of suo- motto revisional powers by revenue authorities and has passed a detailed order on the basis of settled proposition of law by taking into consideration the law propounded by Coordinate Bench of learned Single Judge and placing reliance on the law laid down by Hon'ble Apex Court in (2007) 11 SCC 363 in the case of Rajenbhai Baldevbhai Shah by allowing the petition by a reasoned order which is assailed by the State, which in our considered opinion, does not deserve to be interfered with. (3) We have also independently examined the issue in the context of facts which are prevailing on record and are satisfied that neither there is any illegality or irregularity or perversity in the order passed by the learned Single Judge. Accordingly we are not inclined to substitute the findings given by learned Single Judge.
(4) Law on the issue of exercising Letters Patent Appeal Page 9 of 14 Downloaded on : Sun Dec 25 01:42:45 IST 2022 C/LPA/1182/2022 ORDER DATED: 13/09/2022
jurisdiction is well settled by decision delivered by Hon'ble Apx Court in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company reported in (2016) 3 SCC 340 and we deem it proper to reproduce hereinbelow:-
"5. Once the learned Single Judge having seen the records had come to the conclusion that the industry was not functioning after January 1995, there is no justification in entering a different finding without any further material before the Division Bench. The Appellate Bench ought to have noticed that the statement of MW 3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-court appeal, on a finding of fact, unless the Appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief."
(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 14 Downloaded on : Sun Dec 25 01:42:45 IST 2022 C/LPA/1182/2022 ORDER DATED: 13/09/2022 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 sub- section (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."
Page 11 of 14 Downloaded on : Sun Dec 25 01:42:45 IST 2022
C/LPA/1182/2022 ORDER DATED: 13/09/2022 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 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.Page 12 of 14 Downloaded on : Sun Dec 25 01:42:45 IST 2022
C/LPA/1182/2022 ORDER DATED: 13/09/2022
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 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 Page 13 of 14 Downloaded on : Sun Dec 25 01:42:45 IST 2022 C/LPA/1182/2022 ORDER DATED: 13/09/2022 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.
12. Civil Application No.1 of 2022 does not survive for consideration and it stands REJECTED.
Sd/-
(ARAVIND KUMAR,CJ) Sd/-
(ASHUTOSH J. SHASTRI, J) OMKAR Page 14 of 14 Downloaded on : Sun Dec 25 01:42:45 IST 2022