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Gujarat High Court

Princy Aparatment Co Op Hou Society Ltd vs Special Secretary Revenue ... on 20 February, 2021

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

        C/SCA/20164/2016                                            JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 20164 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

===================================

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 or any order
     made thereunder ?

===================================
       PRINCY APARATMENT CO OP HOU SOCIETY LTD
                        Versus
   SPECIAL SECRETARY REVENUE DEPT(APPEALS) & 6 others
===================================
Appearance:
MR DEEP D VYAS(3869) for the Petitioner
MR. ISHAN JOSHI, AGP (1) for the Respondent Nos. 1, 2, 3, 4
NOTICE SERVED(4) for the Respondent Nos. 5, 6, 7
===================================

 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 20/02/2021

                               ORAL JUDGMENT

1. Heard learned advocate Mr. Deep D. Vyas for the petitioner, and learned Assistant Government Pleader Mr. Ishan Joshi for the Page 1 of 10 Downloaded on : Tue Aug 31 09:16:20 IST 2021 C/SCA/20164/2016 JUDGMENT respondent - State through video conference.

2. Rule returnable forthwith. Learned AGP Mr. Joshi waives service of notice of rule on behalf of the respondent - State.

3. Considering the issue involved in this petition in narrow compass, with the consent of the learned advocates for the respective parties, the matter is taken­up for final disposal.

4. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 31st July, 2009 passed by the Collector, Navsari and order dated 30th July, 2016 passed by the Special Secretary Revenue Department (Appeals) (for short 'the SSRD') and further to restore the order dated 31st December, 1993 passed by the Deputy Collector whereby the land of the petitioner was restored as "A" tenure instead of "C" tenure.

5. The brief facts of the case are that the petitioner co­operative housing society purchased the land situated at City Survey Tikka no.60 (Old Tikka no.21), City Survey no.3063 (Old City Survey no.20) for the purpose of residential housing society by registered sale deed dated 18th January, 1996.

5.1 The land purchased by the petitioner was registered as "A" tenure since inception. The City Survey Inquiry Officer without undertaking any inquiry by Resolution dated 31st July, 1974 recorded the entire area of Navsari as "C" tenure. The said resolution was challenged before the Deputy Collector, Navsari, who by order dated 31st December, 1993 quashed and modified the order passed by the City Survey Officer restoring the same to "A" tenure. The necessary revenue entries were also mutated on the basis of the said order.

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C/SCA/20164/2016 JUDGMENT 5.2 The District Collector after about 14 years issued show cause notice dated 28th December, 2007 though all throughout the said period the land in question is shown to be "A" tenure land. It is the case of the petitioner that the petitioner society is bonafide purchaser of the land in question after due verification as "A" tenure land and has already constructed the residential units as per the construction available as "A" tenure and such units are sold to the members by the petitioner society. The name of the petitioner society is also mutated in the revenue records.

5.3 It appears that the petitioner filed a detailed representation pointing­out to the Collector that property in question has already been purchased by the petitioner society and various other contentions were also raised on law, as well as, on facts.

5.4 The District Collector by order dated 31st July, 2009 quashed and set aside the order dated 31st December, 1993 passed by the Deputy Collector, Navsari holding the land in question as "A" tenure land.

5.5 The petitioner being aggrieved by the order passed by the Collector, preferred revision application before the SSRD, which was also rejected vide order dated 30th July, 2016. The petitioner has therefore, preferred this petition challenging both the orders.

6. Learned advocate Mr. Deep Vyas appearing for the petitioner submitted that initiation of suo motu proceedings by the District Collector after 14 years is beyond the reasonable time. It was submitted that the District Collector, Navsari ought not to have exercised the suo motu powers of revision as provided under Rule 108(6) of the Gujarat Land Revenue Rules, 1972 (for short 'the Rules').

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C/SCA/20164/2016 JUDGMENT

7. Learned advocate Mr. Vyas further submitted that there was no sufficient material available before the Collector to come to the conclusion that the tenure of the land in question is "C" tenure and not "A" tenure. It was pointed­out that after the order was passed by the Deputy Collector on 31st December, 1993, the predecessor in title of the petitioner has sold part of the land to the petitioner in the year 1996 and the entries are mutated in revenue records the name of the petitioner society and though no notice was issued to the petitioner society, the petitioner society on coming to know of issuance of the show cause notice by the Collector has filed detailed reply on 13th January, 2009.

8. It was further submitted that the record relating to old Tikka no.21, clearly indicates that on the land in question, there was a construction and as per the resolution dated 3rd January, 1958 of the Government of Bombay, Revenue Department is applicable and in the property card prepared by the City Survey Superintendent, Navsari there is a clear noting of "A" tenure with regard to the old Tikka no.21 and old Survey no.20.

9. Learned advocate Mr. Vyas further submitted that in the similarly facts, the owners of land situated at Navsari had approached this Court challenging the the similar orders by way of filing Special Civil Application no.1294 of 2009 and Special Civil Application no.17227 of 2013, which came to be allowed by this Court by judgment and order dated 12th August, 2013 and 22nd December, 2014 respectively. It was further pointed­out that the order dated 12th August, 2013 passed in Special Civil Application no.1294 of 2009 was challenged by the respondent authority by filing Letters Patent Appeal no.488 of 2014 and allied matters, which were dismissed by the Division Bench of this Court. It was therefore, submitted that the petition is required to be allowed on the basis of ratio laid down by this Court in LPA no.488 of 2014 and Page 4 of 10 Downloaded on : Tue Aug 31 09:16:20 IST 2021 C/SCA/20164/2016 JUDGMENT allied matters.

10. On the other hand, learned AGP Mr. Ishan Joshi for the respondent - State supported the impugned orders and was not able to controvert the contention of the learned advocate for the petitioner that the issue is now covered by the Division Bench judgment rendered in LPA no.488 of 2014 and cognate matters confirming the judgment and order dated 12th August, 2013 passed by this Court in Special Civil Application no.1294 of 2009 and allied matters, which was followed in Special Civil Application no.17227 of 2013.

11. No further or other submissions are made by the learned advocates appearing for the parties.

12. Having regard to the submissions made by the learned advocates for the parties and on perusal of the impugned orders, as well as, the materials on record, it emerges that the Deputy Collector after considering the matter on merits has allowed the appeal of the predecessor in title of the petitioner and restored the original tenure as "A" tenure for the land in question. It is categorically held by the Deputy Collector that as per the resolution dated 3rd January, 1958 issue of the Bombay State, Revenue Department at the time of merger of the Vadodara State the construction put­up prior to three years thereof would be considered as Gamtal and accordingly, the tenure of the majority of the property situated at Navsari came to be determined as "A" tenure land. The Deputy Collector was therefore, justified in quashing the resolution passed by the City Survey Inquiry Officer determining the land in question as "C" tenure land. The petitioner purchased the property as bonafide purchaser from its purchaser, which has been mutated in the revenue records.

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C/SCA/20164/2016 JUDGMENT

13. It is also an admitted position that after the order was passed by the Deputy Collector, which is acted upon by the petitioner, the Collector initiated suo motu proceedings after 14 years after calling for the opinion from the City Survey Superintendent, as well as, the Deputy Collector. Therefore, the contention raised on behalf of the petitioners are similar to the contention raised before this Court in Special Civil Application no.1294 of 2009 and Special Civil Application no.17227 of 2013 and allied matters. This Court (Coram : Hon'ble Ms. Justice Harsha Devani) while allowing the Special Civil Application no.1294 of 2009 and allied matters has observed thus :

"9. Insofar as the contention that the Collector had no jurisdiction to exercise the powers under rule 108(6) of the Rules against the order passed by the Deputy Collector is concerned, a perusal of the record of the case reveals that the appeal against the order passed by the City Survey Superintendent had been preferred before the Deputy Collector under rule 108(5) of the Rules. A plain reading of rule 108(5) of the Rules indicates that against the order passed by the Deputy Collector under rule 108(5), the Collector is empowered to exercise suo motu powers of revision under sub­rule (6) thereof. Under the circumstances, the contention that the order passed by the Collector is without jurisdiction, on the ground that the Collector does not have the jurisdiction to entertain a revision against the order passed by the Deputy Collector, is clearly contrary to the provisions of rule 108(6) of the Rules and, therefore, does not merit acceptance.
10. On the question as to whether the delay of twelve years in the exercise of suo motu powers of revision against the order dated 09.11.1995 passed by the Deputy Collector would render the order passed by the Collector without jurisdiction, it is by now well settled by a catena of decisions of this court as well as the Supreme Court that even if the statute does not prescribe any period of limitation for the Page 6 of 10 Downloaded on : Tue Aug 31 09:16:20 IST 2021 C/SCA/20164/2016 JUDGMENT exercise of suo motu powers of revision, such powers have to be exercised within a reasonable time. Under the circumstances, the delay of twelve years in exercise of suo motu powers cannot in any manner be said to be a reasonable period. However, in the facts of the present case, it may be noted that the fourth respondents had preferred appeals against the order passed by the City Survey Superintendent after a period of almost twenty years. However, that by itself would not confer power upon the Collector to exercise powers of suo motu revision after a delay of twelve years. More so, for the reason that between the time when the order came to be made by the Deputy Collector on 09.11.1995 and the time when the Collector exercised powers of suo motu revision, equities have changed as the petitioner - Sanidhya Cooperative Housing Society has purchased the subject lands, with an intention to put up residential premises for its members. Thus, the impugned order passed by the Collector prejudicially affects the members of the petitioner Society who are bona fide purchasers of the subject lands, which were shown to be of "A" tenure in the revenue record. Under the circumstances, the exercise of suo motu powers of revision by the Collector after twelve years, being beyond a reasonable period, is clearly without jurisdiction.
11. Adverting to the merits of the case, a perusal of the record of the case annexed along with the memorandum of petition and the affidavit filed by the petitioner reveals that the subject lands, right from the beginning, were shown to be of "A" tenure in the revenue record. The record reveals that the lands bearing Tika No.21, City Survey No.20 paiki were originally of "A" tenure during the time of former State of Vadodara. In the year 1972 when new measurements came to be carried out, the subject lands were given new Tika No.60, City Survey No.3065 and 3066 respectively. At that point of time, the City Survey Superintendent declared the tenure of the subject lands to be of "C" type. However, there is nothing on the record to show as to Page 7 of 10 Downloaded on : Tue Aug 31 09:16:20 IST 2021 C/SCA/20164/2016 JUDGMENT on the basis of which material the City Survey Superintendent had declared the lands to be of "C"

tenure. The record of the case also reveals that the notice which was given by the City Survey Superintendent in the past while conducting the city survey in the year 1973­74, was in relation to hakk choksi, viz., verification of rights, which was only for the purpose of verification of ownership/possessory rights. No notice had been given by the City Survey Superintendent proposing to change the tenure of the lands in question. Under the circumstances, the original land owners were not afforded any opportunity of hearing by the City Survey Superintendent while changing the tenure of the subject lands from "A" to "C".

12. The learned Assistant Government Pleader has placed reliance upon the inquiry register of the city survey for the purpose of contending that the original owner was served with a copy of the order passed by the City Survey Officer and that reasonable opportunity of hearing was given to him. In this regard, a perusal of the order dated 14.09.1973 passed by the Inquiry Officer as reflected in the inquiry register of the city survey (Annexure "R­1") reveals that what is stated therein is that, on a perusal of the documents produced by Bhimbhai Manibhai Desai, Bhimbhai Manibhai Desai was the owner and occupier of the subject lands. That the special assessment in respect of the subject lands has been determined from 28.07.1967 to 31.03.1967 and that the same is revisable. In respect of the revenue survey No.347, the Inquiry Officer has recorded that Daulatrai Maganlal Desai, father of Sureshkumar Daulatrai Desai had purchased the said lands from the original owner by a registered sale deed dated 27.07.1951 and that on the basis of the documents produced by the parties on 14.09.1973, Sureshkumar Daulatrai Desai was holding the subject lands on ownership basis by way of succession. It is further recorded that the Collector has, by an order dated 28.07.1967, fixed the special assessment which is for the period from 28.07.1967 Page 8 of 10 Downloaded on : Tue Aug 31 09:16:20 IST 2021 C/SCA/20164/2016 JUDGMENT to 31.7.1967 and that the said assessment is revisable. Thus, from the order passed by the Deputy Collector, there is nothing to reveal as to on what basis, the tenure of the subject lands has been changed from "A" tenure to "C" tenure."

The aforesaid judgment was challenged by the State Government by preferring Letters Patent Appeal no.488 of 2014, which was dismissed by the Division Bench and it is held as under :­ "Having heard the learned advocates for the parties and having perused the documents on record, we are broadly in agreement with the view of the learned Single Judge. Right from the year 1914, the land was shown as revenue free land. When categorization was applied, from the inception it was shown as 'A' tenure land. This position obtained even during the erstwhile Gaekwad State times. Only in the year 1973, the City Survey Officer changed the tenure from 'A' to 'C'. Nothing is placed on record to suggest that such change in the record was backed by any reasoned order. Apparently, no order was passed. As recorded by the learned Judge, neither any notice was issued before changing the entry nor the change in entry was communicated to the owners. These facts must be seen in light of the alleged delay on the part of the Collector in taking suo motu revision under rule 108 of the Bombay Land Revenue Rules.

Even otherwise, contemporaneous materials would suggest that the land all throughout was treated as 'A' tenure land. It was only in the year 1973 that the City Survey Officer unilaterally without giving reasons changed the categorization. Such order was correctly reversed by the Deputy Collector. The Collector took the order of the Deputy Collector in suo motu revision after a long period of time. Quite apart from the gap of more than 12 years, even the ownership of the land was changed in the meantime."

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C/SCA/20164/2016 JUDGMENT

14. In view of the above facts emerging from the record, the Collector could not have initiated suo motu proceedings of review on the basis of the opinion given by the very authority, who have passed the order in addition to the fact that the action ought not to have been taken after the laps of 14 years. The SSRD while confirming the order passed by the Collector has reiterated and confirmed the view without assigning any other reason. Therefore, the petition deserves to be allowed and is hereby allowed. The order dated 30th July, 2016 passed by the Special Secretary Revenue Department (Appeals) and the order dated 31st July, 2009 passed by the District Collector, Navsari are hereby quashed and set aside and the land in question shall be treated as being of "A" tenure land. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J.) AMAR RATHOD...

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