Gujarat High Court
Muman Ismile Ibrahim Seliya vs State Of Gujarat on 10 August, 2023
NEUTRAL CITATION
C/SCA/5266/2019 ORDER DATED: 10/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5266 of 2019
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MUMAN ISMILE IBRAHIM SELIYA
Versus
STATE OF GUJARAT
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Appearance:
MR SIRAJ R GORI(2298) for the Petitioner(s) No. 1
MR ADITYASINH JADEJA AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 10/08/2023
ORAL ORDER
1. The present Special Civil Application is filed praying for the following reliefs :-
"(A) Be pleased to admit and allow this petition, (B) Be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned orders passed by the Respondent authorities on 08.11.2017 & 30.10.2018 passed by the Respondent No.2 & 1 respectively;
(C) Be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus or any other appropriate writ, order or direction, staying the operation, implementation & execution of the impugned orders passed by the Respondent authorities on 08.11.2017 & 30.10.2018;
(D) Pending admission and final disposal of the present petition, be pleased to direct the respondents to maintain status quo qua the land in question;Page 1 of 9 Downloaded on : Sun Sep 17 00:53:21 IST 2023
NEUTRAL CITATION C/SCA/5266/2019 ORDER DATED: 10/08/2023 undefined (E) Be pleased to pass such other and further orders as may be deemed fit and proper."
2. The factual matrix in the present case is as follows :-
2.1 The petitioner is the bona fide purchaser of the agriculture land bearing survey No.131 paiki 3 admeasuring Hectare 1-04-99 sq. mtrs. at Village Vesadada, District Bharuch. The petitioner is an agriculturist and had purchased the said land on 01.04.2010 and accordingly, by mutation entry No.1797 dated 17.04.2010, the name of the petitioner came to be mutated in the revenue record.
The petitioner is holding the agriculture land since then as owner. The petitioner thereafter applied for non-agriculture permission in the year 2013 with an intention to develop the said land. The said non-agriculture permission application came to be rejected vide order dated 16.11.2013 by the learned Collector stating that upon perusal of the revenue entries, mutation entry No.1010 dated 25.09.1976 in respect of the subject land shows the name of the holder as Bachubhai Jethabhai whose name was entered on the basis of personal occupation and not by any registered sale deed. The learned Collector, therefore, opined that the status of the said Bachubhai Jethabhai as an agriculturist could not be ascertained. In view thereof, non-agriculture permission application of the petitioner came to be rejected. That thereafter, on 24.08.2016, respondent No.2 Collector issued a show cause notice under Section 211 of the Land Revenue Code calling upon the petitioner to produce necessary evidence in respect of the predecessor-in-title Shri Bachubhai Jethabhai as to whether he was an agriculturist on the date when mutation entry No.1010 dated 25.09.1976 came to be mutated in his name. The petitioner gave a reply to the said notice and contended that the petitioner is the 7 th purchaser of the subject land by way of registered sale deed after Shri Bachubhai Page 2 of 9 Downloaded on : Sun Sep 17 00:53:21 IST 2023 NEUTRAL CITATION C/SCA/5266/2019 ORDER DATED: 10/08/2023 undefined Jethabhai who had sold the subject land in the year 1986 after holding the land for 10 years. It was submitted that said Bachubhai Jethabhai, by way of registered sale deed, had sold the land to one Alibhai Ismailbhai Suleman whereby the name of the said purchaser came to be entered in the revenue record vide mutation entry No.1183 dated 17.02.1986. It was submitted that respondent No.2 Collector could not have taken mutation entry No.1010 dated 25.09.1976 into suo motu revision in the year 2016 I. e. after a period of 40 years. It was further submitted that the show cause notice is bad in law and the suo motu revisional powers could not have been exercised after a period of 40 years since the same is not within reasonable period of time. The learned Collector, by order dated 08.11.2017, was pleased to set aside revenue entry No.1010 dated 25.09.1976 on the ground that there is no evidence on record to show whether the said Bachubhai Jethabhai was an agriculturist or not. Accordingly, in absence of any evidence, it was held that at the relevant point of time, said Bachubhai Jethabhai was not an agriculturist and accordingly, there was a violation of Section 63 of the Tenancy Act. The learned Collector, by the said order, has cancelled the mutation entry No.1010 dated 25.09.1976 and all subsequent mutation entries pursuant thereto. By the said order, it was directed that the petitioner is entitled to pay the penalty as prescribed under the law to regularize such a mutation entry earlier in point of time.
2.2 Aggrieved, the petitioner preferred a revision before the learned Special Secretary Revenue Department. By impugned order dated 30.10.2018, the learned Special Secretary Revenue Department, without adverting to the issue of exercising suo motu revisional powers under Section 211 of the Land Revenue Code within a reasonable period of time, upheld the order passed by the learned Collector. It was also noted in the impugned order that the Page 3 of 9 Downloaded on : Sun Sep 17 00:53:21 IST 2023 NEUTRAL CITATION C/SCA/5266/2019 ORDER DATED: 10/08/2023 undefined said mutation entry has been taken into suo motu revision after a period of 40 years. It was also recorded that the petitioner is a bona purchaser of the agriculture land and that he is an agriculturist. It was further recorded that the petitioner could regularize such transaction by paying the penalty under the Act.
2.3 Aggrieved, the petitioner has preferred the present Special Civil Application.
3. Learned advocate Mr. Siraj Gori appearing for the petitioner submits that in the present case, the petitioner had applied for non- agriculture permission to the learned Collector and the learned Collector, while scrutinizing the mutation entry in respect of the subject land, came to the conclusion that the petitioner's predecessor-in-title whose name was entered vide mutation entry No.1010 dated 25.09.1976 was not an agriculturist in absence of production of any valid document. He submits that after rejecting the application for non-agriculture permission as preferred by the petitioner, the learned Collector has suo motu issued notice under Section 211 of the Land Revenue Code exercising revisional powers as to why the said entry of Shri Bachubhai Jethabhai should not be cancelled and set aside. Learned advocate submits that such suo motu revisional powers has been exercised in the present case after a period of 40 years. He submits that the petitioner accordingly filed the reply before the learned Collector, however the learned Collector, doubting the status of Shri Bachubhai Jethabhai as an agriculturist, has proceeded to set aside his revenue entry and all subsequent entries including the mutation entry in favour of the petitioner. He submits that the petitioner has now been called upon to pay the penalty to regularize such possession of Bachubhai Jethabhai in the year 1976. He submits that the learned Special Secretary Revenue Department has also erred for upholding the Page 4 of 9 Downloaded on : Sun Sep 17 00:53:21 IST 2023 NEUTRAL CITATION C/SCA/5266/2019 ORDER DATED: 10/08/2023 undefined order passed by the learned Collector. He submits that both the orders are bad in law and both the authorities have not taken into consideration the law laid down by this Court in respect of exercising revisional powers within a reasonable period of time. He submits that during the pendency of the present petition, the petitioner has come into the possession of certain record in respect of said Bachubhai Jethabhai, which shows that said Bachubhai Jethabhai was an agriculturist on the relevant date when he was holding the subject land as an agriculturist. He, therefore, submits that in view of the documents which have been subsequently acquired by the petitioner, the finding given by both the authorities that said Bachubhai Jethabhai was not an agriculturist, is also falsified and the said documents are produced on record by way of additional affidavit in the present proceedings.
3.1 In support of his contentions, learned advocate for the petitioner has relied upon the following judgments :-
(i) State of Gujarat Vs. Patel Raghav Natha reported in 1969 (2) SCC 187
ii) Madras Aluminum Co. Ltd. vs. Tamil Nadu Electricity Board and anr. Reported in AIR 2023 SC 3353.
(iii) Decision dated 02.01.2023 passed in Letters Patent Appeal No.546 of 2021 and connected matters by this Court.
(iv) Decision dated 15.06.2023 passed in Special Civil Application No.28409 of 2007 passed by this Court
4. Per contra, learned Assistant Government Pleader Mr. Adityasinh Jadeja submits that in the present case, after scrutinizing the revenue record, the learned Collector came to the Page 5 of 9 Downloaded on : Sun Sep 17 00:53:21 IST 2023 NEUTRAL CITATION C/SCA/5266/2019 ORDER DATED: 10/08/2023 undefined conclusion that the status of Bachubhai Jethabhai who was predecessor-in-title of the petitioner could not be ascertained as to whether he was an agriculturist or not and in view thereof, the learned Collector was within his power to issue a show cause notice under Section 211 of the Land Revenue Code. He submits that it has been noted by the authorities that suo motu proceedings have been initiated after a period of 40 years. He submits that the petitioner could not produce any record to show that said Bachubhai Jethabhai was an agriculturist in the year 1976 when he was holding the land. He, therefore, submits that the orders passed by both the authorities are valid. He submits that the petitioner has a remedy of regularizing his possession by paying the penalty under the Act. He submits that the petitioner has not been deprived of his land, however he has been called upon to regularize his possession in view of the fact that his predecessor-in-title was not an agriculturist. He, therefore, submits that the present Special Civil Application be dismissed.
5. Heard learned advocates for the respective parties and perused the documents on record.
6. It is not in dispute that the petitioner is the bona fide purchaser of the agriculture land by way of registered sale deed dated 01.04.2010 along with one Ayub Valibhai Patel who had thereafter relinquished his share in favour of the petitioner by way of registered relinquishment deed dated 05.07.2010 and the petitioner is in possession of the said agriculture land since then. It is also not in dispute that the petitioner is an agriculturist. The record reveals that one Shri Bachubhai Jethabhai was a prior occupant of the said land whose name came to be entered in the revenue record vide mutation entry No.1010 dated 25.09.1976 on the basis of his personal occupation of the subject land. The record Page 6 of 9 Downloaded on : Sun Sep 17 00:53:21 IST 2023 NEUTRAL CITATION C/SCA/5266/2019 ORDER DATED: 10/08/2023 undefined further reveals that thereafter, the land came to be sold by the said Bachubhai Jethabhai by registered sale deed and accordingly, mutation entry No.1183 dated 17.02.1986 came to be made in the name of the new purchaser. Thereafter, the said land was sold three more times before being purchased by the petitioner in the year 2010. Therefore, after the sale of the subject land by Shri Bachubhai Jethabhai in the year 1986, the petitioner is the 5 th purchaser of the subject land. It is further not in dispute that the petitioner applied for non-agriculture permission in respect of the subject land and in those proceedings, the learned Collector raised a doubt with respect to the status of said Bachubhai Jethabhai being an agriculturist or not. The learned Collector held that since there was no evidence on record to show that said Bachubhai Jethabhai was an agriculturist at the time of holding the land in the year 1976, therefore non- agriculture permission could not be granted and accordingly, rejected the same. It is also an admitted position that thereafter, the learned Collector initiated suo motu proceedings under Section 211 of the Land Revenue Code by issuing show cause notice to the petitioner as to why the said entry should not be cancelled and by impugned order dated 08.11.2017, respondent No.2 Collector has cancelled the said entry No.1010 dated 25.09.1976 in favour of said Bachubhai Jethabhai holding that it is not clear that whether he was an agriculturist at the relevant point of time and further has also cancelled all mutation entries subsequent thereto with a direction to the petitioner that all the said entries can be regularized after payment of penalty. The learned Special Secretary Revenue Department has upheld the order of the learned Collector.
7. It is trite law that the statutory authorities exercising suo motu powers are required to exercise such powers within a reasonable period of time where no time-limit has been prescribed to exercise Page 7 of 9 Downloaded on : Sun Sep 17 00:53:21 IST 2023 NEUTRAL CITATION C/SCA/5266/2019 ORDER DATED: 10/08/2023 undefined such powers. It is further settled law that such exercise of power beyond reasonable point of time would render such act and exercise as arbitrary and would be without jurisdiction. In the present case, it is an admitted position that suo motu powers have been exercised after a period of 40 years. It would be pertinent to mention here that respondent No.2 Collector has doubted the status of Bachubhai Jethabhai - predecessor-in-title as an agriculturist. The only reasoning given by the learned Collector in the impugned order is that at the relevant point of time, when mutation entry No.1010 dated 25.09.1976 came to be mutated, it was not on the basis of any registered sale deed, but on the basis of the possession and occupation of the said person. Therefore, the learned Collector has doubted the said mutation entry and the petitioner herein who is the subsequent purchaser in the year 2010 has been called upon to prove that said Bachubhai Jethabhai was an agriculturist on the date when he was in possession of the subject land in the year 1976. The onus has been shifted to the petitioner to clear the doubt raised by the learned Collector while scrutinizing the revenue record. In the considered opinion of this Court, the learned Collector could not have shifted the onus on the petitioner after a period of 40 years in respect of the revenue entry which is posted in the revenue record calling upon him to prove the status of the predecessor-in-title. Otherwise, there would be no sanctity to any of the revenue entries which are posted by the authorities. In the present case, in absence of any cogent evidence, respondent No.2 Collector could not have raised a doubt in respect of the said entry and could not have shifted the onus on the petitioner. Further, such an action of the learned Collector of initiating suo motu proceedings after a period of 40 years also cannot be sustained in law in view of the settled law that such power has to be exercised within a reasonable period of time.
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8. In view of above observations, the order of the learned Collector dated 08.11.2017 and the order of the learned Special Secretary Revenue Department dated 30.10.2018 are quashed and set aside. The Special Civil Application is accordingly allowed. No order as to costs.
(ANIRUDDHA P. MAYEE, J.) cmk Page 9 of 9 Downloaded on : Sun Sep 17 00:53:21 IST 2023