Gujarat High Court
Pranavbhai Bhadresehbhai vs State Of Gujarat Thro on 22 April, 2013
Author: Harsha Devani
Bench: Harsha Devani
PRANAVBHAI BHADRESEHBHAI KAGALWALAV/SSTATE OF GUJARAT THRO SECREARY C/SCA/14743/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 14743 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MS.JUSTICE HARSHA DEVANI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ PRANAVBHAI BHADRESEHBHAI KAGALWALA & 1....Petitioner(s) Versus STATE OF GUJARAT THRO SECREARY & 1....Respondent(s) ================================================================ Appearance: MR. VIRAL K SHAH, ADVOCATE for the Petitioner(s) No. 1 - 2 MS. ASMITA PATEL, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 22/04/2013 ORAL JUDGMENT
1) Rule.
Ms. Asmita Patel, learned Assistant Government Pleader, waives service of notice of rule on behalf of the respondents.
2) Having regard to the controversy involved in the present case, which lies in a very narrow compass, the matter is taken up for final hearing today.
3) The facts of the case stated briefly are that land bearing Old Survey No.214, now given Survey No.106/2, of village Vesu, Taluka: Surat City, District: Surat (hereinafter referred to as the subject land ) was purchased by one Muljibhai Keshabhai by way of registered sale-deed executed on 25.3.1958. Pursuant thereto, Mutation Entry No.218 came to be posted on 17.5.1958 and was certified on 22.5.1958. The said Muljibhai Keshabhai was the tenant of the original landlord Jamshedji Hormanji Makakaka. However, no proceedings were ever initiated under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Tenancy Act ) for declaring Muljibhai Keshabhai to be a deemed purchaser. In fact Muljibhai Keshabhai purchased the subject land from the landlord upon payment of market price of the land under the provisions of the Transfer of Property Act. Thus, the purchase of the subject lands was not under the provisions of the Tenancy Act but under the provisions of the Transfer of Property Act. However, while giving effect to the said entry in Village Form No. 7 and 12, the revenue authority mentioned the words new tenure . It appears that Muljibhai Keshabhai noticed the mistake that had crept in while preparing the Village Form No. 7 and 12 and, accordingly, he made an application to the Mamlatdar for correction of the revenue record by removing the words new tenure from the Village Form No.7 and 12 as the same was not supported by any order. After conducting a thorough inquiry, the Mamlatdar, by an order dated 21.5.2007, held that the restrictions would not apply in view of the decision of this court in the case of State of Gujarat v. Ramji Devjibhai Rabari, rendered on 5.10.2006 in Special Civil Application No.9848 of 2003. He, accordingly, passed an order for correction of the revenue record by removing the words new tenure . The Mamlatdar further observed that as the sale was between the original landlord and the tenant, the same was required to be regularized under sub-section (2) of section 84C of the Tenancy Act. The aforesaid order passed by the Mamlatdar was given effect in the Village Form No.7 and 12 by removing the words new tenure and introducing the words old tenure .
4) On 3.8.2007, Mutation Entry No.4916 was posted pursuant to the above order made by the Mamlatdar. By a communication dated 24.7.2007, the Deputy Collector informed the Additional Mamlatdar that the order dated 21.5.2007 passed by the Mamlatdar had been reviewed by him and the file was sent back. On 12.9.2007, Muljibhai Keshabhai executed a registered sale-deed in favour of one Piyushbhai R. Patel and Vimalbhai R. Patel and corresponding Mutation Entry No.5013 came to be posted on 17.9.2007 by entering the names of Piyushbhai R. Patel and Vimalbhai R. Patel and came to be certified on 15.12.2007. Subsequently, Piyushbhai and Vimalbhai executed a registered sale-deed in favour of the present petitioners, based on which Mutation Entry No.5876 came to be made in the record of rights.
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.
7) Mr. Tatvam Patel, learned advocate for the petitioners, drew the attention of the court to the impugned notice to point out that the same was issued against Shri Muljibhai Keshabhai alone. It was submitted that Shri Muljibhai Keshabhai has expired on 18.12.2008 and that pursuant to the sale-deed executed by him in favour of the predecessor in title of the petitioners, their names have been entered in the record of rights and lastly the name of the petitioners have also been entered in the record of rights. Despite the aforesaid position, notice has been issued against deceased Muljibhai Keshabhai alone. It was further pointed out that the impugned notice has been issued on 21.9.2011 taking into revision the order dated 21.5.2007 made by the Mamlatdar under section 84C(2) of the Tenancy Act. Referring to the provisions of section 76A of the Tenancy Act and, more particularly, to the proviso thereto, it was submitted that by virtue of the proviso, there is a bar against taking the order of the Mamlatdar in revision after expiry of one year from the date of such order and therefore, the impugned show-cause notice having been issued beyond the prescribed period of limitation, is without authority of law. It was also contended that the order passed by the Mamlatdar was already taken in review by the Deputy Collector as communicated by the letter dated 24.7.2007 (Annexure-H to the petition) and, as such, it was not permissible for the Deputy Collector to take the order in revision once again. It was also contended that as of now, the subject lands have already been converted into non-agricultural lands and, therefore, no longer fall within the purview of the provisions of the Tenancy Act and on this ground also, the impugned show-cause notice is without authority of law. In support of his submissions, the learned counsel has placed reliance upon the decision of a Division Bench of this court in the case of Thakorbhai Tribhovandas Rao v. The State of Gujarat, 1995 (1) GLH 758, wherein it has been held that the limitation prescribed by the proviso for the exercise of the revisional powers beyond the expiry of one year from the date of the order is clear and explicit and the Collector will have no revisional power to be exercised beyond the period of one year prescribed by the proviso to section 76A. The court, accordingly, upheld the contention of the petitioners against the validity of the impugned notices belatedly seeking to take up the orders of Mamlatdar and A.L.T in revision under section 76A of the Tenancy Act. It was submitted that the said decision would be directly applicable to the facts of the present case, inasmuch as, the order passed by the Mamlatdar in the year 2007 is sought to be taken in revision in the year 2011.
8) On the other hand, Ms. Asmita Patel, learned Assistant Government Pleader, supported the impugned show-cause notice and submitted that the present petition is pre-mature because what is subject matter of challenge is only a show-cause notice, therefore, it is always open for the petitioners to raise all contentions, which have been raised before this court before the revisional authority and, as such, the present petition against a show-cause notice, ought not to be entertained by this court. Referring to the proviso to section 76A of the Tenancy Act, it was submitted that the prohibition thereunder operates qua calling for the record of the case after the expiry of a period of one year from the date of the order of the Mamlatdar and does not operate qua issuance of show-cause notice. In support of her submission, the learned Assistant Government Pleader has placed reliance upon the decision of a learned Single Judge of this court in the case of Radhesyham Laluram Kabra v. Shantilal Manilal Solanki, 2009 (2) GLH 442 for the proposition that the time limit prescribed in section 76A is only for the purpose of calling for the record of any inquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality and propriety of any order passed by such Mamlatdar or Tribunal. The period of one year is prescribed for such purpose. No time limit is prescribed for the purpose of passing the order after calling for the records and proceedings.
9) Before adverting to the merits of the case, certain facts may be recapitulated. As noticed earlier, the Mamlatdar and A.L.T had passed an order under sub-section (2) of section 84C of the Tenancy Act on 21.5.2007. Such order came to be reviewed by the Deputy Collector, Choryasi Prant Surat and by a communication dated 24.7.2007, the Mamlatdar was informed about the same and the record and proceedings came to be returned to the Mamlatdar. Subsequently by the impugned show cause notice the order of the Mamlatdar is sought to be taken in revision under section 76A of the Tenancy Act.
10) Section 76A of the Tenancy Act deals with the revisional powers of the Collector and lays down that where no appeal has been filed within the period provided for it the Collector may, suo motu or on a reference made in this behalf by the State Government, at any time
(a) call for the record of any inquiry or the proceeding of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and (b) pass such order thereon as he deems fit. The proviso thereto postulates that no such record shall be called for after the expiry of one year from the date of such order and no order of the Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard. A perusal of the impugned show-cause notice reveals that the same has been issued pursuant to a communication dated 8.8.2011 issued by the Collector, Surat to the Deputy Collector, instructing him to take the order of the Mamlatdar in revision under section 76A of the Tenancy Act. Thus, when the impugned notice has been issued to the petitioners pursuant to the aforesaid instructions issued by the Collector, even if, the contention raised by the learned Assistant Government Pleader to the effect that it is the date on which the record and proceedings are called for, which is material for the purpose of determining the limitation under section 76A were to be accepted, in the facts of the present case, evidently, the record and proceedings could not have been called for by the Deputy Collector prior to receipt of the communication dated 8.8.2011 of the Collector, instructing him to take the order of the Mamlatdar in revision. Therefore, the bar under the proviso to section 76A of the Code would operate. Besides, the statutory period prescribed for calling for the record and proceedings is one year from the date of the order of the Mamlatdar. If, at all, the record and proceedings had been called for within a period of one year from the date of the order of the Mamlatdar, it is not possible to believe that the Deputy Collector would have waited for a further period of three to four years for issuing the show-cause notice under section 76A of the Code.
11) At this juncture it may be germane to refer to the decision of a Division Bench of this court in the case of Thakorbhai Tribhovandas Rao v. The State of Gujarat (supra), wherein the court in the context of section 79A of the Tenancy Act held thus:
It will be seen that no record can be called for by the Collector after the expiry of one year from the date of the order made by the Mamlatdar or the Tribunal, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of the proceedings of the Mamlatdar or Tribunal. The proviso to Sec. 76A would be applicable even in a case where a Reference is made by the State Government requiring the Collector to call for the record and proceedings for the purpose of satisfying himself as to the legality or propriety of the order. The limitation prescribed by the proviso for the exercise of the revisional powers beyond the expiry of one year from the date of the order is clear and explicit and the Collector will have no revisional power to be exercised beyond the period of one year prescribed by the proviso to Sec. 76A. Therefore, the only contention which was raised on behalf of the petitioners against the validity of the impugned notices belatedly seeking to take up the orders of Mamlatdar and A.L.T passed in 1971, 1972, 1973 for Revision under Sec. 76A of the Act deserves to be accepted. The learned Counsel appearing for the respondents had hardly any answer to the mandatory provisions of the proviso to Sec. 76A prescribing the time-limit during which the power could be exercised for revising the orders of the Mamlatdar or the Tribunal. This petition, therefore, deserves to be allowed. The impugned notices issued by the Deputy Collector, Kheda in Tenancy Revision Nos. 183 to 224 dated 4-9-1981 seeking to revise under Sec. 76A, the orders made by the Mamlatdar or the Tribunal in 1971, 1972 and 1973 are hereby set aside. Rule is made absolute accordingly with no order as to costs.
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 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.
(HARSHA DEVANI, J.) Vahid Page 11 of 11