Gujarat High Court
Patel Kanji Vishram vs State Of Gujarat on 15 July, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/14704/2016 JUDGMENT DATED: 15/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14704 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 14705 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 10103 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PATEL KANJI VISHRAM
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
SPECIAL CIVIL APPLICATION No.14704 & 14705 of 2016
MR MEHUL SHARAD SHAH (773) for the Petitioner(s) No. 1
MR JIGAR J PATEL(7971) for the Petitioner(s) No. 1
MR RUTUL P DESAI(6498) for the Petitioner(s) No. 1
MR MEET THAKKAR, AGP for the Respondent(s) No. 1
MR AR THACKER(888) for the Respondent(s) No. 4
SPECIAL CIVIL APPLICATION No.10103 of 2017
MR MEHUL SHARAD SHAH (773) for the Petitioner(s) No. 1
MR JIGAR J PATEL(7971) for the Petitioner(s) No. 1
MR MEET THAKKAR, AGP for the Respondent(s) No. 1
MR NIKHILESH J SHAH (3007) for Respondent No.3.
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 15/07/2022
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C/SCA/14704/2016 JUDGMENT DATED: 15/07/2022
ORAL JUDGMENT
1. By filing these petitions, the petitioner has mainly prayed as under:-
Special Civil Application Nos.14704 and 14705 of 2016 "(a) Your Lordships may be pleased to issue a writ of certiorari and/or any other appropriate writ order or direction in the nature of certiorari, quashing and setting aside the impugned order dated 27.06.2016 in Revision Application No.MVV/BKHP/SUOMOTU/KUTCHH/1/2015 passed by the Principal Secretary, Revenue Department (Dispute) at Annexure-A;"
Special Civil Application No.10103 of 2018 "(a) Your Lordships may be pleased to issue a writ of certiorari and/or any other appropriate writ order or direction in the nature of certiorari, quashing and setting aside the impugned communication dated 09.05.2017 passed by the Respondent No.3 at Annexure-A;"
2. Since Special Civil Application No.10103 of 2018 depends upon the decision, which may be taken in other two petitions, facts are taken from Special Civil Application No.14704 of 2016 and it is treated as lead matter.
3. Order under challenge in Special Civil Application No.14704 and 14705 of 2016 is of learned SSRD, who has exercised suo motu powers under Section 211 of the Act, whereby he has cancelled NA permission granted by District Collector, after almost 24 years of delay, and more Page 2 of 9 Downloaded on : Fri Jul 15 21:46:53 IST 2022 C/SCA/14704/2016 JUDGMENT DATED: 15/07/2022 particularly, on earlier occasion, SSRD has upheld NA permission granted by Collector way back in 1995.
4. The facts of the case in nutshell are that the petitioner has purchased the land in question from his predecessor in title and they are in occupation of the land in question. That necessary mutation entry was made in the revenue record and as the petitioner has applied for NA permission, necessary public notice was advertised in Kutch Mitra in 1991 and no objection was received thereof and, ultimately, NA permission was granted by concerned District Collector and on that basis, sub-plots were made. It is further the case of the petitioner that thereafter, private respondent no.4 and one another person, preferred a revision application before learned SSRD against the order of converting the land into non-agricultural land. Said revision application came to be dismissed by learned SSRD upholding the order of the Collector. Grievance raised by private respondent was regarding 0.08 gunthas of land, which was merged with the land purchased by the petitioner and only on that ground, he had challenged NA permission.
4.1 Thereafter, some other person has also made application before learned Collector, Kutch, which came to be decided by Collector holding that it is time-barred. Thereafter, similar application was filed by respondent no.4 for mutating his name in revenue record on account of land admeasuring 8 gunthas bearing Revenue Survey No.718/2, which came to be allowed by Deputy Collector against which the petitioner preferred revision in 1996 before the Collector, which came to be rejected by the Collector. Thereafter, the petitioner preferred Page 3 of 9 Downloaded on : Fri Jul 15 21:46:53 IST 2022 C/SCA/14704/2016 JUDGMENT DATED: 15/07/2022 revision application before respondent no.2 against said order of Collector, which also came to be rejected vide order dated 30.9.1998. Against that order, petitioner preferred Special Civil Application before this Court, which came to be rejected by this Court in the year 2013, however, it was clarified that dismissal of the petition may not be construed as the Court having endorsed the order passed by revenue authority with regard to ownership of the land and both the parties were at liberty to approach Civil Court to establish their ownership rights. However, on 12.2.2016, the petitioner received show cause notice from learned SSRD taking order of District Collector of 1992 granting NA permission in suo motu revision after delay of 24 years and in that exercise of power, learned SSRD by impugned order has cancelled NA permission granted in the year 1992.
5. Heard learned advocate Mr.Mehul Sharad Shah for the petitioner, learned AGP, Mr.Meet Thakkar for respondent-State and learned advocate Mr.N.J.Shah for respondent no.3. Perused the material placed on record and considered the decisions cited at bar.
6. Learned counsel Mr.Mehul Sharad Sha for the petitioner has vehemently submitted that there was dispute of just 8 gunthas of land between the petitioner and private respondent and according to private respondent, his 0.08 gunthas of land was merged with the land of the petitioner and NA was wrongly granted for his land. Mr.Shah also submitted that during the pendency of the petition, an amicable settlement is arrived at between the petitioner and private respondent and 0.08 gunthas land of private respondent is purchased by the Page 4 of 9 Downloaded on : Fri Jul 15 21:46:53 IST 2022 C/SCA/14704/2016 JUDGMENT DATED: 15/07/2022 petitioner and private respondent has filed an affidavit in this regard. He further submitted that on earlier occasion, NA permission was granted by learned Collector in 1992, which was challenged by private respondent before learned SSRD, however, said order of Collector was upheld by learned SSRD in 1995 and, thereafter, the petitioner has made construction on the land. He submitted that in 2016, i.e. after 24 years, by exercising suo motu powers under Section 211 of the Gujarat Land Revenue Code, learned SSRD has cancelled NA permission, which was granted in 1992 and earlier confirmed in 1995 by learned SSRD. He submitted that such exercise of suo motu powers by learned SSRD is illegal on two counts, firstly it is time barred as such power is exercised after 24 years and secondly, when there was earlier order passed his predecessor in office upholding NA permission granted by Collector. He submitted that SSRD has no authority to review the order passed by his predecessor in office. He submitted that considering the facts and circumstances of the case, impugned order of learned SSRD deserves to be quashed and set aside.
6.1 Mr.Shah also submitted that so far as Special Civil Application No.10103 of 2017 is concerned, the impugned notice therein is issued by concerned authority only on the basis of cancellation of NA permission by the impugned order of learned SSRD and the authority has called upon to produce the decision of the litigation pending between the parties. Mr.Shah has submitted that decision in Special Civil Application Nos.14704 and 14705 of 2016 will govern the issue involved in Special Civil Application No.10303 of 2017. He has prayed to allow all these petitions while relying upon following decisions.
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(i) Bipinchandra G. Dalal and Another v. State of Gujarat and Another reported in 1987 (2) GLH 127.
(ii) Bhupendrabhai Govindbhai v. State of Gujarat reported in 2015 JX (Guj) 1063.
(iii) Bochasanwasi Shri Akshar Purushottam Sanstha by his Pramukh v. Thakore Umedji Nanaji and Others reported in 2009 (2) GLH 651.
7. Learned AGP, Mr.Meet Thakkar for the respondent-State has submitted that joint affidavit has been filed in Special Civil Application No.14704 and 14705 of 2016. He submitted that order passed by learned SSRD is proper and it does not require any interference.
8. Learned advocate for private respondent has submitted that in view of the fact that disputed portion of land of 0.08 gunthas is sold by his client to the petitioner, these petitions may be allowed.
9. Learned advocate Mr.N.J.Shah appearing for the authority in Special Civil Application No.10103 of 2017 has submitted that the authority has issued notice on the basis of cancellation of NA permission by learned SSRD and, therefore, the issue involved in Special Civil Application Nos.14704 and 14705 of 2016 will govern the present matter also.
10. Considering the submissions advanced by both the sides and the material placed on record as well as the decisions cited at bar, it appears that NA permission for the land in question was granted by learned Collector in 1992, which was Page 6 of 9 Downloaded on : Fri Jul 15 21:46:53 IST 2022 C/SCA/14704/2016 JUDGMENT DATED: 15/07/2022 challenged by private respondent before learned SSRD, however, said order of Collector was upheld by learned SSRD in 1995. Thereafter, the petitioner has made construction on the land. It also appears that in 2016, i.e. after 24 years, by exercising suo motu powers under Section 211 of the Gujarat Land Revenue Code, learned SSRD has cancelled NA permission, which was granted in 1992 and earlier confirmed in 1995 by learned SSRD. Therefore, the question is as to whether such powers can be exercised after a long period of 24 years. The Supreme Court in the case of State of Gujarat v. Raghav Natha reported in 1969 GLR 992 was concerned with a case where revisional powers were sought to be exercised under Section 211 of the Code in respect of permission granted under Section 65 of the Code. In that case one of the questions which came up for consideration was, whether it was open to the concerned authority to exercise revisional jurisdiction at any point of time or whether the same ought to be exercised within a reasonable time. Dealing with this question the Supreme Court observed that while no period of limitation was prescribed under Section 211 of the Code, the power must be exercised within a reasonable time, the length of reasonable time to be determined by the facts of the case and the nature of the order proposed to be revised.
11. As stated herein above, in the present case, NA permission was granted in 1992 and it was confirmed by learned SSRD in 1995, however, the same is taken in suo motu revision after 24 years. It is also clear that no satisfactory reasons are provided for taking such permission in suo motu revision. Learned SSRD has no power or authority to review the decision of his predecessor in office while exercising powers Page 7 of 9 Downloaded on : Fri Jul 15 21:46:53 IST 2022 C/SCA/14704/2016 JUDGMENT DATED: 15/07/2022 under Section 211 of the Code and that too beyond reasonable period of time. In view of this, impugned order of learned SSRD is not sustainable in the eyes of law and it is required to be set aside. Not only that respondent nos.4.1 to 4.4 have already sold 0.08 gunthas of land to the petitioner and the dispute is already settled between the parties. An affidavit is filed in this regard, stating as under:-
"1. We states and submit that the captioned petition has been preferred against the order of Ld.SSRD dated 27.06.2016 whereby the order of Ld. Collector granting the N.A. permission, has been set aside only on the ground that while granting said permission to Petitioners 0-08 Gunthas of land belonging to answering deponents was also Included through it belonged to Respondent Nos.4.1 to 4.4 and their Predecessor.
2. We state and submit that matter has been settled between the parties and respondents no.4.1 to 4.4 has withdrawn their objections regarding Acre 0-08 Gunthas land of R.S.No.718/3. Further, the respondent no.4.1 to 4.4 state that the objection was raised by their father was due to misunderstanding.
3. We say and submit that in view of the settlement arrived at the between the parties, we have no objection if the captioned petition is allowed and the order of Ld. Collector granting N.A. Permission in favour of the Petitioners, is restored with effect."
12. Considering aforesaid facts, impugned order of learned SSRD exercising suo motu power of cancelling NA permission is devoid of merits and the same deserves to be quashed and set aside and Special Civil Application Nos.14704 and 14705 of 2016 deserve to be allowed. At the same time, as the concerned authority has issued notice, which is impugned in Special Civil Application No.10103 of 2017 is based upon the decision of learned SSRD, which deserves to be set aside, as Page 8 of 9 Downloaded on : Fri Jul 15 21:46:53 IST 2022 C/SCA/14704/2016 JUDGMENT DATED: 15/07/2022 observed herein above, Special Civil Application No.10103 of 2017 also deserves to be allowed.
13. In view of above, Special Civil Application Nos.14704 and 14705 of 2016 are allowed. Impugned order dated 27.06.2016 in Revision Application No.MVV/BKHP/SUOMOTU/KUTCHH/ 1/2015 passed by the Principal Secretary, Revenue Department (Dispute), is quashed and set aside. Consequently, Special Civil Application No.10103 of 2017 is also allowed. Impugned communication dated 09.05.2017 passed by the Respondent No.3 is also quashed and set aside. No order as to costs. Direct service is permitted.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 9 of 9 Downloaded on : Fri Jul 15 21:46:53 IST 2022