Gujarat High Court
Bakorbhai Bababhai Patel vs Revenue Secretary (Appeals) on 3 January, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/1139/2016 JUDGMENT DATED: 03/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.1139 of 2016
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
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1. Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2. To be referred to the Reporter or not ? YES
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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BAKORBHAI BABABHAI PATEL
Versus
REVENUE SECRETARY (APPEALS), & 2 others
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Appearance :
MR DEEP B KOTHARI for the Petitioner.
DELETED for the Respondent No.3.
MR NIKUNJ KANARA, AGP for the Respondent Nos.1,2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 03/01/2024
ORAL JUDGMENT
1. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing Page 1 of 13 Downloaded on : Fri Jan 05 20:39:04 IST 2024 NEUTRAL CITATION C/SCA/1139/2016 JUDGMENT DATED: 03/01/2024 undefined today itself. Rule. Learned Assistant Government Pleader waives service of rule on behalf of respondent Nos.1 and 2.
2. By way of the present petition, the petitioner has prayed for quashing and setting aside the order dated 29.9.2015 passed by the respondent No.1 - Secretary, Revenue Department (Appeals) in Revision Application No.MMV/CON/SBR/6/2012 as well as the order dated 31.12.2011 passed by the Deputy Collector, Bayad in Case No.CON/9/2011. By order dated 31.12.2011, the Deputy Collector, Bayad under the proceedings under Section 9(1), (2) and (3) of the Gujarat Prevention of Fragmentation of Land and Consolidation of Holdings Act (hereinafter referred to as 'the Fragmentation Act') for breach of the provisions of the Fragmentation Act passed an order directing the petitioner to restore the original position of land bearing Survey No.1041, Block No.1090 paiki admeasuring 8719 Sq. Mts. of land situated at village Ambaliyar, Taluka Bayad, District Sabarkantha (Arvalli) for alleged sale transaction of land in question in contravention of provisions of the Fragmentation Act which was held to be invalid under Section 9(2). By the order dated 29.9.2015, the Secretary, Revenue Department (Appeals) has rejected the revision application and confirmed the order of the Deputy Collector.
3. The brief facts giving rise to the filing of the present petition are stated as under :-
3.1 Land bearing Survey No.1041, Block No.1090 paiki admeasuring 8719 Sq. Mts. of land situated at village Ambaliyar, Taluka Bayad, District Sabarkantha (Arvalli) was purchased by the petitioner from Tapodhan Ravishankar Dahyabhai, Tapodhan Page 2 of 13 Downloaded on : Fri Jan 05 20:39:04 IST 2024 NEUTRAL CITATION C/SCA/1139/2016 JUDGMENT DATED: 03/01/2024 undefined Ambalal Dahyabhai by registered Sale Deed dated 15.4.1994 for which Entry No.2107 was mutated in the revenue records.
Thereafter, by registered Sale Deed dated 6.9.2003, the petitioner purchased rest of the land admeasuring 8719 Sq. Mts. of Survey No.1041, Block No.1090 paiki situated at village Ambaliyar, Taluka Bayad, District Sabarkantha (Arvalli) from another co-owner for which Entry No.2860 was mutated.
3.2 The Circle Officer took a view that in view of the fact that consolidated scheme is in existence, the sale being block land paiki, refused to certify the entry and forwarded the papers for necessary inquiry for violation of consolidation scheme vide communication dated 30.3.2005.
3.3 Pursuant to the same, respondent No.2 registered case being No.CON/9/2011 and issued show-cause notice dated 23.11.2011 to the petitioner and passed an order invalidating the sale in favour of the petitioner and directing the petitioner to restore the original position of land in question and imposed a fine of Rs.250/-.
3.4 The petitioner challenged the aforesaid order before the Special Secretary, Revenue Department (Appeals) by way of Revision Application No.MMV/CON/SBR/6/2012. The said revision application was rejected vide order dated 29.9.2015. 3.5 Hence the present petition.
4. Mr. Kothari, learned advocate appearing for the petitioners pointed out that actual land was owned by Tapodhan Page 3 of 13 Downloaded on : Fri Jan 05 20:39:04 IST 2024 NEUTRAL CITATION C/SCA/1139/2016 JUDGMENT DATED: 03/01/2024 undefined brothers and the petitioner, initially, purchased one portion of the land in the year 1994 admeasuring 8719 Sq. Mts. and later on purchased remaining portion of the same land admeasuring 8719 Sq. Mts. which are adjoining to each other and, therefore, in fact, the petitioner has tried to consolidate the land by purchasing two different portions of the same Survey Number. 4.1 Mr. Kothari assailed the orders passed by the revenue authorities mainly on the following grounds :-
4.2 For a sale transaction which has taken place in the year 2003, show-cause notice was issued to the petitioner after delay of 8 years in the year 2011 and, therefore, initiation of the proceedings against the petitioner was beyond reasonable period and, therefore, the same was without jurisdiction and secondly that the act of the petitioner of purchasing the remaining portion of land in question amounts to consolidation of land as both the lands are of same survey number and of same measurement and were purchased by two different co-owners of the land. Therefore, the act of purchasing two different portions of land which are adjacent to each other would amount to consolidation of land in question.
4.3 Learned advocate Mr. Kothari relied upon two unreported decisions of this Court in the case of Rabari Shankarbhai Shaklabhai v. State of Gujarat in Special Civil Application No.15056 of 2019 dated 9.2.2022 and decision in the case of Bhavubhai Gandabhai Koli v. State of Gujarat in Special Civil Application No.6892 of 2021 dated 16.3.2022 where in similar set of facts, this Court quashed and set aside the orders passed by the revenue authorities whereby the transaction Page 4 of 13 Downloaded on : Fri Jan 05 20:39:04 IST 2024 NEUTRAL CITATION C/SCA/1139/2016 JUDGMENT DATED: 03/01/2024 undefined was held to be in breach of the Fragmentation Act and was held invalid.
4.4 By relying upon the aforesaid two orders, learned advocate Mr. Kothari prayed for quashing of the impugned orders.
5. Mr. Nikunj Kanara, learned Assistant Government Pleader appearing for the respondents has vehemently opposed the petition by stating that the petitioner has one after another by way of two different Sale Deeds has purchased the two fragments of the land which is in violation of the provisions of the Fragmentation Act and, therefore, the impugned orders passed by the revenue authorities are absolutely in consonance with the provisions of the Act and, therefore, this Court may not interfere with the impugned orders and dismiss the petition.
6. I have heard learned advocates appearing for the respective parties and perused the record. On perusal of the record, I found that both the portion of land purchased by the petitioner is the land bearing Survey No.1041, Block No.1090 paiki situated at village Ambaliyar, Taluka Bayad, District Sabarkantha (Arvalli). Further, first portion was purchased by the petitioner admeasuring 8719 Sq. Mts. of land in the year 1994 and thereafter, remaining portion of land admeasuring 8719 Sq. Mts. of land was purchased by the petitioner in the year 2003. The aforesaid facts are undisputed facts which would indicate that the petitioner has purchased two different portions of land belonging to same survey number. Further, I have also noted the fact that the proceedings initiated by the Deputy Collector, Bayad is in respect of a transaction of the year 2003 for which show-cause notice was Page 5 of 13 Downloaded on : Fri Jan 05 20:39:04 IST 2024 NEUTRAL CITATION C/SCA/1139/2016 JUDGMENT DATED: 03/01/2024 undefined issued to the petitioner only on 23.11.2011 i.e. almost after 8 years from the date of transaction. In view of the aforesaid aspect, the decisions relied upon by learned advocate Mr. Kothari is required to be considered.
7. In similar set of facts, this Court in the case of Rabari Shankarbhai Shaklabhai v. State of Gujarat (Supra) in paragraphs 5.5 and 5.6 has made the following observations :-
"5.5. Considering the aforesaid judgments in the cases of [1] Paliben Wd/o. Kikubhai Kuvariyabhai Koli Patel (supra), [2] Ramsingbhai Bavlabhai Koli (supra), [3] Vitthalbhai M. Patel (supra), [4] Rathod Nayamatkhan Ahmedkhan (supra) and [5] Ravindrabhai Chhotabhai Patel (supra) coupled with the fact that the Government itself has come with Government Resolution dated 10.6.2013 whereby also if the land is purchased by a person, who is having contiguous land in that case the petitioner's case would be covered not only by the above referred judgments, which are in respect of delay in initiating the proceedings under the Fragmentation Act, but also on the ground that the land which has come to the share of the petitioner by way of the family arrangement is contiguous land to the land owned by the petitioner, and therefore, the same are required to be consolidated. The aforesaid survey Nos.7/2 and 7/4 are contiguous to the land owned by the petitioner i.e. survey No.7/3 has not been controverted by the State by way of affidavit in Page 6 of 13 Downloaded on : Fri Jan 05 20:39:04 IST 2024 NEUTRAL CITATION C/SCA/1139/2016 JUDGMENT DATED: 03/01/2024 undefined reply, and therefore, even without going into the disputed question whether the land is irrigated land or not the issue can be decided only on the ground delay as well as the land which is sought to be transferred in the name of the petitioner is contiguous land.
5.6 In view of the aforesaid clear proposition of law as well as the Government resolution, considering the facts of the case that in the instant case also the proceedings under the Fragmentation Act were initiated after a delay of 9 years coupled with the fact that survey Nos.7/2 and 7/4 are contiguous land to the land owned by the petitioner, the impugned orders deserve to be quashed and set aside. As far as the question of delay is concerned, though the Special Secretary, Revenue Department (Disputes) rejected the revision application preferred by the petitioner on the ground of delay as well as merit and hence when the State itself has initiated the proceedings after a lapse of 8 years for which no reason is coming forward on record coupled with the fact that the petitioner has become the owner of contiguous land for which the Government itself has vide Government Resolution dated 10.6.2013 has made certain clarifications in the form of relaxation, the Special Secretary, Revenue Department (Disputes) ought not have rejected the revision application preferred by the petitioner on the ground of delay without considering the totality of Page 7 of 13 Downloaded on : Fri Jan 05 20:39:04 IST 2024 NEUTRAL CITATION C/SCA/1139/2016 JUDGMENT DATED: 03/01/2024 undefined the facts."
By the above decision, this Court has taken a view that if the actions under the Fragmentation Act are initiated after lapse of 8 years, the same is bad and, therefore, deserves to be quashed and set aside.
8. Further, this Court in case of Bhavubhai Gandabhai Koli v. State of Gujarat and others (Supra) has made following observations in paragraphs 15 to 17 :-
"15. By now, it is well settled that by exercising the suo moto powers, the powers must be exercised within a reasonable time by the authority that reasonable time, according to the recent order passed in Letters Patent Appeal No. 2436 of 2017 dated 09.03.2021 by the Division Bench of this Court wherein it is observed in paragraph no. 6 that the reasonable time which can be construed as "reasonable" would be three (3) years." Now, keeping the view of Division Bench of this Court in mind and also keeping the ratio laid down by the Division Bench of this Court, in the case of Valjibhai Jagjivanbhai (Supra) wherein also the powers were exercised after long delay and the Division Bench categorically observed that powers under sections 9 (2) and 9 (3) have to be exercised within reasonable time especially as authorities have considerable opportunities to know about the transaction. The Division Bench has in paragraph no. 16.1 observed Page 8 of 13 Downloaded on : Fri Jan 05 20:39:04 IST 2024 NEUTRAL CITATION C/SCA/1139/2016 JUDGMENT DATED: 03/01/2024 undefined as under :-
"These provisions enable the revenue authorities to have complete details of the land which is entered as fragment in the record of rights or in absence of it, the record which is maintained in accordance with Section 6(1) of the Act, in any local area. It is, therefore, presumed that whenever change in the ownership is required to be entered into the revenue records after a sale transaction between two parties in respect of such land is over, the revenue authority would be able to find out whether the sale was legal or it was made in contravention of any of the provisions of the Act. No need to say that when the sale transaction is found to have been made contrary to the provisions of the Act, no change in the mutation entry would be effected. Naturally when the fragment is sought to be sold or is actually sold, it is against the provisions of Section 7, as transfer by partition or in any other way of a fragment is in contravention of provisions of Sections 7, 8, 8AA, etc, This is illustrative and not exhaustive."
16. The aforesaid observations made by the Division Bench of this Court would squarely cover and counter the arguments made by the learned AGP that the authority came to know about such mutation entry only in the year 2018 and thereafter, immediately proceedings were initiated as observed Page 9 of 13 Downloaded on : Fri Jan 05 20:39:04 IST 2024 NEUTRAL CITATION C/SCA/1139/2016 JUDGMENT DATED: 03/01/2024 undefined by the Division Bench of this Court. When mutation entry is certified, it can be presumed that the authority was well aware about the transactions in question and therefore, even if the date on which the mutation entry was certified is treated as the time from which the reasonable period is required to be counted, then also the powers are exercised by the authority after a period of four years i.e. beyond the period of reasonable time as observed by the Division Bench of this Court to be of three years.
17. Therefore, the exercise of powers by the authority and confirmed by the revisional authority is in respect of a proceedings which were initiated after a delay of four years and therefore, initiation of proceedings itself is barred by delay and laches and suffers from the gross delay and therefore, entire proceedings which are initiated belatedly would not be sustainable and therefore, deserves to be quashed and set aside and hence, orders passed in the proceedings which are initiated belatedly after a reasonable time also deserves to be quashed and set aside."
In the above referred case, reference about the order dated 9.3.2022 passed by the Division Bench of this Court in Letters Patent Appeal No.2436 of 2017 is made wherein in paragraph 6 of the order, the Division Bench has observed as under
:-Page 10 of 13 Downloaded on : Fri Jan 05 20:39:04 IST 2024
NEUTRAL CITATION C/SCA/1139/2016 JUDGMENT DATED: 03/01/2024 undefined "6. Having heard the learned advocates appearing for the respective parties and on perusal of records, we notice that initially the proceeding was initiated against the present applicants under Section 26(2) of the Gujarat Agricultural Lands Ceiling Act, 1960 way back on 2011. On notice being issued, petitioners had submitted the reply and after considering the said reply, the Mamlatdar and ALT by order dated 21.04.2012 withdrew the notice issued to the petitioners. In other words, he was satisfied that lands held by the petitioners was not in excess of ceiling limit so fixed under the Act. This order was sought to be reviewed by the Deputy Collector and in exercise of the suo motu power of revision vested had called for the records from the office of the Mamlatdar and ALT and on perusal of records arrived at a conclusion by order dated 08.05.2012 to the effect that order passed by the Mamlatdar and ALT was in consonance with the records and lands held by the petitioners was not in excess of the ceiling. In other words, order dated 21.04.2012 passed by the Mamlatdar and ALT came to be affirmed. Undisputedly, the orders dated 21.04.2012 and 08.05.2012 attained finality. If at all, the State was aggrieved by said orders, it was fully within its jurisdiction to challenge the same by filing a revision petition before the Gujarat Revenue Tribunal as provided under Section 38 of the Gujarat Agricultural Lands Ceiling Act, 1960. In fact, the limitation to file such revision has also Page 11 of 13 Downloaded on : Fri Jan 05 20:39:04 IST 2024 NEUTRAL CITATION C/SCA/1139/2016 JUDGMENT DATED: 03/01/2024 undefined been prescribed as sixty (60) days under Section 39 subject to just exceptions prescribed under Sections 4, 5, 12 and 14 of the Limitation Act, 1963. Be that as it may. The aforesaid course of action was not undertaken by the authorities, yet they sought to re-
agitate the matter by issuing afresh notice for exercising suo motu powers which had already been exercised and got exhausted. Even otherwise, the suo motu powers which is the repository of powers vested with the authorities has to be necessarily exercised within a reasonable time, as what would be reasonable time, all depends upon the facts and circumstances obtained in each case. There cannot be any straight-jacket formula which can prescribe as to what would be the reasonable time. However, the reasonable time which can be construed as "reasonable" would be three (3) years. Any power exercised beyond the reasonable period would have to be justified as otherwise it cannot be held or construed that the authorities have acted in a fair and reasonable manner."
9. The view taken by the Division Bench of this Court is that the period of three years would be construed as reasonable period and any power exercised beyond the reasonable period would have to be justified as otherwise and considering the fact that in the present case, undisputably, the powers are exercised after a period of 8 years, the impugned orders are bad as the initiation of proceedings is without jurisdiction as the same is initiated after delay of 8 years.
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10. Further, in view of the above discussion, as the respondents have exercised powers under Fragmentation Act beyond reasonable period, as well as considering the fact that the petitioner has purchased the land which is contiguous to each other, which ultimately would amount to consolidation of two different parcels of land, the impugned orders are required to be quashed and set aside as both the respondent authorities have not taken the aforesaid aspect into consideration.
11. Resultantly, the present petition succeeds and is allowed. The order dated 29.9.2015 passed by the respondent No.1
- Secretary, Revenue Department (Appeals) in Revision Application No.MMV/CON/SBR/6/2012 as well as the order dated 31.12.2011 passed by the Deputy Collector, Bayad in Case No.CON/9/2011 are quashed and set aside. Rule is made absolute to the above extent. No order as to costs.
Sd/-
(NIRZAR S. DESAI,J) SAVARIYA Page 13 of 13 Downloaded on : Fri Jan 05 20:39:04 IST 2024