Gujarat High Court
Shubhashbhai Chhaganbhai Chhorvadiya vs State Of Gujarat on 10 January, 2023
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/6237/2018 JUDGMENT DATED: 10/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6237 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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SHUBHASHBHAI CHHAGANBHAI CHHORVADIYA
Versus
STATE OF GUJARAT
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Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1,2
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 10/01/2023
ORAL JUDGMENT
1. In the present writ petition, the petitioners have assailed the order dated 13/17.03.2018 passed by the Special Secretary (Appeals), Revenue Department (SSRD) in Revision Application No.21 of 2016 and the order dated 12.02.2016 passed by the District Collector, Amreli in RTS/Nondh/ Revision Case No.67 of 2014.
2. The brief facts of the case are as under:-
2.1. By way of a registered sale deed dated 10.03.2010, the petitioners purchased land bearing survey No.132 paiki 4, Khata No.332 Page 1 of 9 Downloaded on : Fri Jan 13 20:42:31 IST 2023 C/SCA/6237/2018 JUDGMENT DATED: 10/01/2023 admeasuring Hector 2-42-81 Are.
2.2. On the basis of the aforesaid sale deed, an entry came to be mutated in the revenue record being village form No.7/12 and village Form No.8A and the same came to be certified on 31.05.2010 being entry No.1911.
2.3. After a lapse of more than four years and seven months, the respondent No.2-Collector initiated proceedings, in purported exercise of power under Rule 108(6) of the Gujarat Land Revenue Rules, 1972 (for short "the Rules") taking the entry No.1911 in suo motu revision by way of issuing a show cause notice dated 01.12.2014 to the petitioners to show cause as to why entry No.1911 should not be cancelled. The main ground, on which the proceedings were initiated, was that according to the Collector, the petitioner No.1-Subhashbhai Chhaganbhai Chhorvadiya was not an agriculturist and therefore, could not have purchased agricultural land.
2.4. The petitioner no.1 filed reply to the said show cause notice, wherein inter alia it is stated that the land is purchased by two persons jointly and that the petitioner No.2-Sureshhai Babubhai is holding an agricultural land at village Liliya, Taluka: Unjha Padar and necessary documents in that regard were produced. It was also stated that the petitioner no.1 is also holding an agricultural land and therefore, it is not correct to show that the petitioner no.1 is not an agriculturist. The Collector, however, vide order dated 12.02.2016 cancelled the entry No.1911, which was certified on 31.05.2010.
2.5. The aforesaid order of the Collector was assailed before this Court Page 2 of 9 Downloaded on : Fri Jan 13 20:42:31 IST 2023 C/SCA/6237/2018 JUDGMENT DATED: 10/01/2023 by way of writ petition being Special Civil Application No.3433 of 2016 inter alia contending that the order passed by the Collector was without jurisdiction and secondly no further appeal lies against the order of the Collector. The said petition came to be dismissed by this Court vide order dated 01.03.2016, wherein it is held by this Court that alternative remedy by way of preferring Revision Application before the State Government is availabe and therefore, the petition was not entertained.
2.6. The petitioners thereafter, preferred a Revision Application before the respondent No.1-State Government being Revision Application No.21 of 2016. The said Revision Application has been rejected by the respondent No.1 vide impugned order dated 13/17.03.2018, whereby the respondent No.1 has rejected the Revision Application and has confirmed the order of the Collector.
3. Learned advocate Mr.Dipen Desai has submitted that the Collector has no jurisdiction to decide the validity and legality of the sale transaction of the petitioners. It is submitted that the Collector, in exercise of powers under the Gujarat Land Revenue Code and while considering the legality and validity of the mutation entry, cannot decide any question with regards to breach of provisions of other enactments. It is submitted that in the present case, the Collector has initiated proceedings on the ground that the purchase of agricultural land by a non-agriculturist is not permissible and is barred and hence, the Collector in exercise of powers under the Gujarat Land Revenue Code cannot decide the issue with regard to breach of section 63 of the Gujarat Tenancy and Agricultural Lands Act, 1948 and in a way initiated proceedings under Section 84(C) of the Gujarat Tenancy and Agricultural Lands Act, 1948. It is submitted Page 3 of 9 Downloaded on : Fri Jan 13 20:42:31 IST 2023 C/SCA/6237/2018 JUDGMENT DATED: 10/01/2023 that the same is clearly not permissible in the eyes of law and therefore, the Collector has no jurisdiction to initiate proceedings for breach of any other enactment. Therefore, the order passed by the Collector is clearly without jurisdiction and without authority of law.
3.1. It is submitted by the learned advocate Mr.Desai that initiation of proceedings by the Collector is also beyond reasonable time. It is submitted that the land in question was purchased by the registered sale deed dated 10.03.2010 and the entry came to be certified on 31.05.2010, whereas, the proceedings came to be initiated by the Collector after a lapse of more than four years and six months by way of show cause notice dated 01.12.2014 and there is no explanation whatsoever with regards to such unreasonable and inordinate delay of more than four years and six months. Thus, it is submitted that initiation of proceedings is clearly beyond reasonable period and therefore, the order of the Collector is required to be set aside. In support of his submissions, he has placed reliance on the judgments of this Court in the case of Siddharthbhai B. Shah vs State of Gujarat, 1999 (2) GLH 82 and Rinki Shashikant Gandhi vs. Mamlatdar Vadodara Taluka and Ors., 2012 (2) GLR 1275.
4. Per contra, learned AGP Mr.Kanara, while referring to the entries and the orders passed by the respondent authorities has submitted that the authority below has examined the fact with regard to the manner and method in which the entries are made and when it was found that the entry has been made by taking benefit of an identical surname i.e. Chorvadiya, the respondent-Collector, Amreli initiated suo motu proceedings under the provisions of Rule 108(6) of the Rules. It is submitted that the impugned orders are appropriately passed and hence, Page 4 of 9 Downloaded on : Fri Jan 13 20:42:31 IST 2023 C/SCA/6237/2018 JUDGMENT DATED: 10/01/2023 the writ petition may not be entertained.
5. I have heard the learned advocates appearing for the respective parties.
6. The Collector, in exercise of the powers conferred under Rule 108(6) of the Rules by initiating suo motu exercise of powers of the order dated 12.02.2016, has cancelled the other sale transactions, including the transaction pursuant to which the Entry Nos.612 and 1085 are made.
7. It is not in dispute that by initiating suo motu powers under Rule 108(6) of the Rules, the Entry No.1911, which was registered in view of sale deed dated 10.03.2010 is sought to be revoked and cancelled after a period of more than 4 years. In an identical case, this Court in the case of Rinki Shashikant Gandhi (supra), while examining the provisions of Rule 108(6) of the Rules and the aspect of delay of 4 years, has held thus:-
"25. The culmination of the above discussion, in light of the judicial pronouncements and reasons stated hereinabove, leads this court to the following conclusions:
The proceedings initiated by the vendor, respondent No.4, after four years of execution of the sale transaction and five years of the registration thereof, suffer from delay, having been instituted after an unreasonably long period of time. As such, the Collector could not have acted upon those proceedings by passing the impugned order. Respondent No.4, being the vendor of the land in question has no locus standi to challenge the entry of sale, in respect of a transaction to which he was a willing party, after pocketing the sale consideration. Under these circumstances, respondent No.4 is not an aggrieved person and cannot be permitted to take undue advantage of his own wrong. The Collector, under sub-Rule (6) of Rule 108 is not vested with power to direct forfeiture of the land to the State Government. The direction Page 5 of 9 Downloaded on : Fri Jan 13 20:42:31 IST 2023 C/SCA/6237/2018 JUDGMENT DATED: 10/01/2023 in the impugned order, to this effect, is beyond the jurisdiction vested in the Collector under Rule 108(6) in R.T.S. Proceedings. The Collector, in exercise of power under Rule 108(6) in RTS proceedings cannot exercise power under the Fragmentation Act, merely by virtue of his position or designation or the fact that he may be acting in different capacities under different enactments. Being a quasi judicial authority, the Collector is bound to exercise power within the limits prescribed by the particular enactment under which he is called upon to adjudicate, and cannot transgress the limits of such statutory power, in a manner that overlaps a different enactment. By passing the impugned order, the Collector has transgressed the scope and ambit of the power conferred by sub-rule (6) of Rule 108 of the Gujarat Land Revenue Rules, 1972, and has erroneously exercised power under the Fragmentation Act, which is not permissible. No proceedings have been initiated against the petitioner under the Fragmentation Act and no notice has been issued to her under this enactment. By holding the sale transaction to be violative of the provisions the fragmentation act and directing forfeiture of the land to the State Government, the petitioner has been seriously prejudiced, as it virtually amounts to setting aside the Sale Deed in RTS proceedings. No proceedings have been initiated against the petitioner under the Fragmentation Act and no notice has been issued to her under this enactment. By holding the sale transaction to be violative of the provisions of the fragmentation act and directing forfeiture of the land to the State Government, the petitioner has been seriously prejudiced, as it virtually amounts to setting aside the Sale Deed in RTS proceedings."
The Coordinate Bench has held that the Collector cannot go or institut any proceedings after an unreasonable long period.
8. It would also be apposite to note that the Collector has doubted the status of the petitioners being agriculturists by passing the impugned order and seting aside the concerned entry. At this stage, it would be apposite to refer the observations made by this Court in the case of Siddharthbhai B. Shah (supra), this Court, while examining the provision of Rule 108 of the Rules has held thus:-
Page 6 of 9 Downloaded on : Fri Jan 13 20:42:31 IST 2023C/SCA/6237/2018 JUDGMENT DATED: 10/01/2023 "3. Mr AJ Patel, learned counsel appearing for the petitioners submitted that the order passed by the Collector as well as Deputy Secretary, Annexures-D and F are illegal and without authority of law inasmuch as the said authorities have decided the status of the petitioners as an agriculturists in R.T.S. proceedings. In the submission of Mr Patel, whether petitioners are agriculturists or not is a question cannot be decided in the proceedings under rule 108 of the Gujarat Land Revenue Rules, 1972. I find considerable substance in the submission of Mr. Patel. There is no dispute to the fact that the petitioners are occupying and cultivating the lands bearing survey no. 986 Part, situated in the sim of village Unjha. It is also not in dispute that the petitioners purchased certain lands of village Unava and the distance between Unjha and Unava is only 2 to 3 kms. and is in any way, within the limits of 8 kms. Even though the entries were made on the basis of the sale deeds in respect of the lands purchased by the petitioners in the revenue records, however, the Mamlatdar, Sidhpur refused to certify the said entries on the ground that the petitioners were not agriculturists. So far as the proceedings under Rule 108 of the Rules, popularly known as R.T.S. proceedings are concerned, it is now well settled that entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by the competent authority under special enactments. Indepentenly, the revenue authorities have mentioned rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transactions recorded in the entries are against the provisions of the particular enactment. Whether the transactions is valid or not has to be examined by the competent authority under the particular enactments by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Since, in the instant case, the Collector as well as Deputy Secretary had decided the question that the petitioners are not agriculturists within the meaning of Bombay Tenancy Act. In R.T.S. proceedings, I am of the opinion that the authorities have acceeded their jurisdiction in deciding the question about the status of the petitioners. In view of the final direction given by the Deputy Secretary, directing the Mamlatdar and A.L.T., Disdhdhpur to initiate the proceedings under section 84C of the Tenancy Act, and if, this finding that the petitioners are not agriculturists remains, in that event, it will not be possible for the petitioners to urge before the Mamlatdar and A.L.T. that they are agriculturists. Since the proceedings under section 84C of the Act is a proceeding where the concerned party can come out with a case of being agriculturist by leading an appropriate evidence, the finding given by the Collector as well as Deputy Secretary vide orders Annexures-D and F will completely block the case of the petitioners in the proceedings under section 84C of the Act, therefore, the finding Page 7 of 9 Downloaded on : Fri Jan 13 20:42:31 IST 2023 C/SCA/6237/2018 JUDGMENT DATED: 10/01/2023 recorded in the Orders Annexures-D and F are required to be set aside. Similarly, the direction given in order Annexure-F to the Deputy Collector, Patan to initiate the proceeding in review with respect to entry no. 6652 of land bearing survey no. 986 of Unjha is also uncalled for."
It is held by this Court that the revenue authorities, while exercising the powers under Rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transactions recorded in the entries are against the provisions of the particular enactment and the Collector as well as Deputy Secretary cannot decide the question with regard to the status of the persons, who have entered into the transactions as to whether they are agriculturists or not within the meaning of the Gujarat Tenancy Act and such exercise is undertaken by the authorities, the same would amount to jurisdiction having been exercised in excess.
9. The petitioners, when they were called upon to produce their status of their agriculturists, they had produced ample evidence to show that they are holding an agricultural land. The petitioner no.1 has asserted that he is holding agricultural land Mauje Dolti, Taluka Savarkundla, under Khata No.279 along with his brothers Manubhai Chhaganbhai Chorvadiya and Dineshbhai Chhaganbhai Chorvadiya admeasuring 1600188 sq.mtrs. since the year 1992. All these documents were discarded by the Collector and accepted the report of the Mamlatdar without serving such copy to him. The Collector has in fact passed the impugned orders only because of the doubt in the surname of the petitioners i.e. instead of "Chorvadiya", it was recorded in the revenue record as "Sorvadiya". The District Collector was required to supply the report of the Mamlatdar to the petitioner and had to give specific findings with regard to the documents produced by the petitioner no.1 in support Page 8 of 9 Downloaded on : Fri Jan 13 20:42:31 IST 2023 C/SCA/6237/2018 JUDGMENT DATED: 10/01/2023 of his case. However, it is totally ignored the same and after a lapse of four and half years, the impugned orders are passed exercising the suo motu powers under the provisions of Rule 108(6) of the Rules, which runs contrary to the settled proposition of law.
10. Thus, the impugned order suffers from two counts:- (1) the same is exercised after a period of more than 4 years and (2) the same is de hors the jurisdiction of the Collector and in violation of the settled proposition of law.
11. Hence, the writ petition succeeds. The impugned orders dated 13/17.03.2018 passed by the Special Secretary (Appeals) Revenue Department (SSRD) Revision Application No.21 of 2016 and the order dated 12.02.2016 passed by the District Collector, Amreli are hereby quashed and set aside. Rule is made absolute.
Sd/-
(A. S. SUPEHIA, J) ABHISHEK/124 Page 9 of 9 Downloaded on : Fri Jan 13 20:42:31 IST 2023