Indian Kanoon - Search engine for Indian Law

Gujarat High Court

Ganesh Sagar Infrastructure Pvt. Ltd vs State Of Gujarat on 15 June, 2023

Author: Sangeeta K. Vishen

Bench: Sangeeta K. Vishen

    C/SCA/28409/2007                                       CAV JUDGMENT DATED: 15/06/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 28409 of 2007

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
==========================================================
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 ?
==========================================================
                  GANESH SAGAR INFRASTRUCTURE PVT. LTD.
                                  Versus
                       STATE OF GUJARAT & 2 other(s)
==========================================================
Appearance:
MR MIHIR H JOSHI, SENIOR ADVOCATE WITH MR SHAMIK BHATT FOR
SINGHI & CO(2725) for the Petitioner(s) No. 1
MR MEET M THAKKAR, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2,3
==========================================================
    CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                     Date : 15/06/2023
                     CAV JUDGMENT

The subject matter of challenge in the captioned writ petition, is the order dated 18.10.2007 passed by the Collector - respondent no.2. Challenge is also to the order dated 16.06.2006 passed by the District Development Officer i.e. respondent no.3 (on the basis of the Resolution no.113 dated 15.04.2006). Vide above-referred order dated 18.10.2007, the Collector, has quashed and set aside order dated 31.12.1993 and order dated 15.02.1994 passed by the Mamlatdar, Daskroi and Deputy Collector, Viramgam Prant respectively. Consequential entry no.5664 and entry no.5665, both Page 1 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 dated 18.02.1994 respectively, were also directed to be quashed and set aside. Further, the Collector ordered that in the village form no.7/12, the land be shown as new tenure land. The Mamlatdar, Daskroi vide order dated 31.12.1993, has directed removal of the words 'new tenure' from the revenue record and on the basis whereof, the Deputy Collector, Viramgam Prant, vide order dated 15.02.1994 withdrew the notice for the breach of conditions.

2. The petitioner, being aggrieved by the order dated 18.10.2007, has filed the captioned writ petition raising various contentions including the contention that the Collector, after a lapse of almost 14 years, could not have taken in revision the aforestated orders and the consequential entries.

3. Mr Mihir Joshi, learned Senior Counsel appearing with Mr Shamik Bhatt, learned advocate for Singhi & Co. for the petitioner, while inviting attention of this Court to the order dated 31.12.1993, submitted that apropos the remand, the Mamlatdar, Daskroi, has passed a detailed order considering all the aspects and it is held that in 7/12 form of survey no.414 (hereinafter referred to as "the land in question") the endorsement 'new tenure', is without any basis. With this, the Mamlatdar, Daskroi, directed removal of the endorsement 'new tenure' in the revenue record of the land in question. It is submitted that the petitioner company had purchased the land in question by way of a registered sale deed and pursuant to which, entry no.5700 was mutated in the revenue record, followed by certification on 16.04.1994 by the Mamlatdar.

4. It is further submitted that the petitioner, applied for non- agricultural permission under the Gujarat Land Revenue Code, 1879 (hereinafter referred to as 'the Code') and various opinions were sought from various offices of Deputy Collector, Collector etc. The Deputy Collector, opined that the land is of the old tenure and there Page 2 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 is no objection, if the land is converted to non-agricultural use. It is submitted that proceedings for non-agricultural use, culminated into passing of the order dated 18.06.2006, though all the authorities had given positive opinion and even the District Panchayat, recommended grant of non-agricultural use permission, imposing penalty. In the interregnum, the Collector, had addressed a communication to the District Development Officer i.e. respondent no.3, inter alia, informing that the order of the Mamlatdar, Daskroi dated 13.12.1993 as well as order dated 15.02.1994 of the Deputy Collector, Viramgam Prant, are tested. With this, the office of the Collector, gave its negative opinion with a further direction that the concerned shall be informed that there shall not be any construction carried out.

4.1 It is submitted that the Collector, addressed a letter to the District Development Officer - respondent no.3 on 13.04.2006; however, Collector did not do anything for one and half year and thereafter, issued show cause notice only on 17.09.2007. It is submitted that there was a gross delay in issuing the notice inasmuch as, the order of the Mamlatdar, Daskroi and the Deputy Collector, Viramgam Prant were passed in the year 1993 and 1994 respectively; whereas, show cause notice, has been issued after 14 years and therefore, there is an unreasonable delay. It is submitted that everything was known to the respondent authorities, for, mutation entries were posted in the revenue record and nothing was suppressed. It is not even the case of the revenue authorities that there is a fraud committed. It is submitted that a detailed reply was filed pointing out that issues have been raised after more than 3 years from the certification of the entry no.7872 dated 03.03.2004. Fact was also brought to the notice that the land in question, has been purchased vide registered sale deed after making full payment Page 3 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 of which an entry no.5700, was posted in the revenue record and was duly certified. Specific contention, was also raised that since the notice has been issued after 14 years, the same is barred by various judgments of the Apex Court and the Hon'ble High Court and, is therefore, illegal and bad. It is submitted that though contentions have been recorded in the order; the same have been briefly touched. Merely stating that the orders of the Mamlatdar, Daskroi and Deputy Collector, Viramgam Prant are null and void. It is submitted that such opinion, was premised on the ground that the proceedings were remanded by the Collector to look into the issue of alleged breach of conditions whereas the Mamlatdar, Daskroi directed removal of the entry of the 'new tenure' which would be dehors the provisions of Section 197 of the Code.

4.2 Reliance is placed on the judgment of this Court in the case of Bhanji D. Luhar vs. State of Gujarat reported in 2011 (2) GLR 1676. It is submitted that this Court, quashed and set aside the decision to evict the petitioner therein after a lapse of 17 years and 30 years on the date of the judgment. Further reliance is placed on the judgment in the case of Chandulal Gordhandas Ranodariya vs. State of Gujarat reported in 2013 (2) GLR 1788. It has been held and observed that if the statute does not prescribe the time limit for exercise of the revisional powers, it does not mean that such powers can be exercised at any point of time. This Court, has held and observed that it is so because, the law does not expect the settled thing to be unsettled after a long lapse of time. It is submitted that therefore, such initiation of action and the order being passed by the Collector, would be beyond the reasonable period and therefore, without jurisdiction and deserves to be quashed and set aside.

4.3 It is further submitted that the subject matter before the Collector was the orders dated 13.12.1993 and 15.02.1994 of the Page 4 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 Mamlatdar, Daskroi and Deputy Collector, Viramgam Prant respectively and entry no.5664 dated 18.02.1994 and entry no.5665 dated 18.02.1994. The proceedings, were initiated after almost 9 years of the issuance of notice dated 11.07.1998 by the Collector alleging that the land in question could not have been purchased by the petitioner, it being a non-agriculturist which notice, came to be withdrawn during the proceedings before the Apex Court as recorded in the order dated 01.11.2004 in Civil Appeal no.2420- 2421 of 1999. Moreover, the proceedings have been initiated after more than 3 years from the date of the certification of entry no.7872 recording the fact about conversion of Ganesh Sagar Co- operative Housing Society Limited into Ganesh Sagar Infrastructure Private Limited. Further, there was a delay of one year and eight months after the communication dated 06.01.2006 of the Collector himself to the Deputy Collector, Viramgam Prant and more than one year and five months after the Collector's communication dated 13.04.2006 to the District Development Officer. Also, the stand of the Collector that the orders came to his knowledge only during the proceedings relating to the non-agricultural use application, is unpalatable and dehors the record considering the fact that after orders were passed by the Mamlatdar, Daskroi and Deputy Collector, Viramgam Prant that entry nos.5664 and 5665 respectively were posted in the revenue record on 18.02.1994.

4.4 It is submitted that the Collector, was also of the opinion that the land in question was running as 'new tenure' land since 1915- 1916. What weighed with the Collector was passing of the order by the Mamlatdar, Daskroi after 78 years, it being beyond limitation and against the provisions of the Act and therefore, nullity. It is submitted that such finding is erroneous for, the Mamlatdar, Daskroi, has passed an order apropos the order dated 07.10.1993 of the Collector, remanding the matter to the Mamlatdar, quashing and Page 5 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 setting aside the order dated 11.05.1972 of the Prant Officer, Viramgam. It is submitted that the Collector had specifically observed that contention of the applicant as to whether the land is of new tenure or not, is correct or not be considered. It is therefore, submitted that whether the land in question is of new tenure or not, such jurisdiction was given by the Collector vide order dated 07.10.1993 and which order has not been challenged or questioned before the higher forum. The aspect of delay, has been resolved by the order dated 07.10.1993 passed by the Collector and therefore, on this count as well, the order of the Collector, deserves to be quashed and set aside and necessary consequential order, be passed.

5. Mr Meet Thakkar, learned Assistant Government Pleader for the respondent submitted that though it is said that it was an inquiry by the Mamlatdar, Daskroi, it is an order directing removal of 'new tenure'. Even the Deputy Collector, Viramgam Prant, in penultimate paragraph, has referred 31.12.1993, as an order. It is submitted that the Mamlatdar, Daskroi, had no authority to decide and therefore, the Collector, has observed in its order that the Deputy Collector, Viramgam Prant exceeded its jurisdiction, while addressing a letter dated 27.10.1993, requiring the Mamlatdar, Daskroi to conduct inquiry under Section 197 of the Code. It is submitted that the Collector, has recorded that the factum of 'new tenure' reflected in the revenue record of the year 1915-1916, has been accepted by the occupier and after a span of 78 years, the tenure has been directed to be removed by the Mamlatdar, Daskroi.

5.1 It is submitted that Section 197 of the Code envisages an inquiry and instead of conducting an inquiry, the Mamlatdar, Daskroi proceeded to order removal of the entry 'new tenure'. What was required of the Mamlatdar, Daskroi, was an inquiry and not passing of the order. The Deputy Collector, Viramgam Prant, has considered Page 6 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 it as an order and rightly so, as it was an order, which otherwise, ought not to have been an order, but an inquiry.

5.2 It is submitted that Section 135J of the Code, envisages presumption of correctness of entries in the Record of Rights and register of mutations. The said aspect, has been dealt with in the order of the Collector. It has been observed that at the relevant point of time, in the year 1915-1916, the land, was of new tenure and was granted to the occupier which factum, is recorded at item no.776. As against this, the Mamlatdar, Daskroi, has observed that there are no orders of sanad or otherwise to suggest that the land, is of a new tenure land. The Collector, has also stated that such observation would be against the provisions of Section 135J of the Code.

5.3 It is submitted that in order of the Collector dated 07.10.1993, it has been observed that in the revenue record of the year 1916- 1917 and more particularly, entry at Sr. No.776 in column no.9, the name of Gordhan Dungar is shown as possessing the land and in column no.2, an endorsement 'new tenure'. Further, in column no.10, the nature of rights have been mentioned, it being 'sharti kabulat'. It has also been noted that the land, from the beginning was of new tenure and after the death of Gordhan Dungar in the year 1933, entry no.1097, was posted and the name of Ramabhai Rupabhai, was entered in the revenue record vide entry no.1666 dated 17.06.1947. It has been observed that the land in question, was given by Ramabhai Rupabhai to Kachra Jiva and therefore, his name was entered since the year 1952-1953 to 1977-1978 in the village form no.7/12 which, was considered as a breach of condition and led to passing of the order dated 11.05.1972, directing vesting of the land in the State Government. It is submitted that since Ramabhai Rupabhai was not heard that the Collector, was of the Page 7 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 opinion that matter be remanded and the contention of Ramabhai Rupabhai that the land is not of a new tenure, is correct or not be determined.

5.4 It is submitted that the Mamlatdar, Daskroi, upon remand, passed an order dated 31.12.1993 and was of the opinion that the basis on which the endorsement 'new tenure' has been mentioned, is not available. The Mamlatdar, Daskroi also observed that endorsement 'new tenure sharti kabulat' has been bracketed and the land, was forfeited vide entry no.929, followed by entry no.976 about payment of the arrears. It is further submitted that such finding, would be incorrect inasmuch as, the Mamlatdar, Daskroi, had not scrutinized the Record of Rights of the years 1915-1916 to 1922-1923 and of the years 1924-1925 to 1927-1928. The Mamlatdar, Daskroi, instead of considering these documents, has referred to 'kayam kharda', showing the details of the land of particular village, which was of the year 1901. The 'kayam kharda', prior to the year 1901, did not show the tenure of the land, and it only contained other details with respect to the lands and therefore, the order passed by the Mamlatdar, Daskroi, was not legal and valid and was required to be set aside.

5.5 It is further submitted that though it is the claim of the petitioner that he is a bonafide purchaser as it has purchased the land in question by way of a registered sale deed dated 07.03.1994 and after the order dated 15.02.1994 whereby, the land was declared as 'new tenure', is not correct for, as is discernible from the sale deed itself, there was an agreement to sell entered into between the original owner Shri Ramabhai Rupabhai and Ganesh Sagar Co-operative Housing Society Limited on 12.02.1993; whereas, the order of the Collector was subsequently passed on 07.10.1993. Hence, before the orders were passed by the Page 8 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 authorities, the petitioner had already entered into an agreement to sell with the original owner Shri Ramabhai Rupabhai.

5.6. It is further submitted that it is incorrect to say that the order dated 18.10.2007 of the Collector, does not contain reasons, inasmuch as, the explanation is very much there. While referring to the revenue record of the years 1915-1916 to 1922-1923, so also the 'kayam kharda', in paragraph 2, it has been observed that the tenure which was reflected in the revenue record for 78 years, could not have been removed by the Mamlatdar, Daskroi in the year 1993 and therefore, such removal, was beyond limitation. It is submitted that reference is also made to Section 197 of the Code and the objective behind insertion of Section 197, which only provides for the inquiry to be conducted by the revenue authorities, but do not provide any jurisdiction to the Mamlatdar to test the tenure and direction to remove the same.

5.7 It is next submitted that the non-agricultural use permission was refused under Section 65 of the Code, but the petitioner had already constructed 25 bungalows on the land in question only on the basis of the development permission granted by Ahmedabad Urban Development Authority (hereinafter referred to as 'AUDA'). It is submitted that it would be impermissible to use the agricultural land for non-agricultural purpose without obtaining requisite permission.

5.8 While referring to the further affidavit dated 28.12.2010 of the Resident Deputy Collector, it is submitted that this Court, passed an order wherein, the petitioner, agreed to pay the premium amount for getting the land in question converted into old tenure land. It is submitted that at the instance of the petitioner company, the orders were passed for payment of the premium amount; however, the Page 9 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 petitioner, neither paid the premium nor has acted on the basis of the order passed by this Hon'ble Court as regards the payment of the premium amount.

5.9 Reliance is placed on the CAV judgment dated 08.11.2017 in the case of Jayantibhai Keshabhai Patel vs. State of Gujarat rendered in Special Civil Application no.9256 of 2009. It is submitted that in the case before this Court, after about 87 years, the owners chose to approach Deputy Collector for removing the tenure in the revenue record under Section 197 of the Code which, was directed to be removed in the year 2001. This Court, did not accept the contention that, after the Deputy Collector corrected the deficiency in the revenue record, that the petitioner therein chose to purchase the said land, it being an old tenure land. This Court, held and observed that the timings of the application by the purchasers in title soon after the decision of the Apex Court in other parcels of land of the Ghatlodiya village, is not a mere coincidence. The purchase on the part of the petitioner also within a period of one year when the words 'new tenure' were removed from the record and the entry of 'old tenure' was mutated, cannot be seen as free from doubt. It is submitted that the said judgment on facts and on law applies on all fours to the instant case.

5.10 Further reliance is placed on the judgment of this Court in the case in Special Civil Application no.1213 of 2015, wherein proceedings were initiated after 31 years, despite it were within the knowledge of the revenue authorities. This Court, while partly allowing the writ petition, did not interfere with the order only on limited aspect that there was no determination of the value by the authorities and straightaway, penalty was imposed. Reliance is also placed on the judgment of the Apex Court in the case of State of Orissa vs. Brundaban Sharma reported in 1995 (Supp.) 3 SCC 249.

Page 10 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023

C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 5.11 It is therefore submitted that the Mamlatdar having exceeded its jurisdiction that the Collector had observed that it is nullity. It is submitted that the proceedings, were remanded for the limited purpose as to whether there is a breach of condition and therefore, the Mamlatdar, could not have gone into other arguments. It is therefore, submitted that the endorsement, was very much available since inception, i.e. 78 years and the entry was there and therefore, it cannot be said that the order of the Collector is not legal; whereas, the order of the Mamlatdar, Daskroi, is illegal and without jurisdiction and therefore, no interference is warranted. It is therefore, urged that no error has been committed by the Collector and the petition deserves to be dismissed and be accordingly dismissed.

6. Mr Mihir H. Joshi, learned Senior Advocate submitted that the contentions raised by the learned Assistant Government Pleader, namely, holding of the agricultural land by the petitioner; permission; construction over the land in question etc., are misconceived and irrelevant. It is submitted that the petitioner was already holding other agricultural lands at the time of purchase of the land in question and therefore, no permission under Section 63 of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'Act of 1948') was required, which factum, is discernible from the communication dated 19.02.1991 of the Assistant Collector addressed to the Chairman, Ganesh Sagar Co- operative Housing Society Limited, inter alia, pointing out that it did not require permission under Section 63 of the Act of 1948 as it was already holding other agricultural lands. Moreover, said Ganesh Sagar Co-operative Housing Society Limited, was converted into Ganesh Sagar Infrastructure Private Limited after obtaining necessary permission from the Registrar of Companies by Page 11 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 Certificate of Incorporation dated 01.10.2002 and consequent entry no.7872, has already been posted in the revenue record.

6.1 It is further submitted that issue as regards execution of the sale deed dated 27.09.2004 in favour of Unmesh Complex Private Limited, is also baseless as, it was for facilitating a proposed diversion of administration of business, as certain lands of project, including the land in question were transferred to Unmesh Complex Private Limited, which is a group company with the same shareholders. Reference is made to the comparative chart of shareholders and directors of both the companies, namely, Ganesh Sagar Infrastructure Private Limited and Unmesh Complex Private Limited (pages 479 and 480). Owing to certain issues, the diversion of administration has to be given a go by and formality of bringing back the land was not undertaken immediately; however, Unmesh Complex Private Limited had not asserted any right and even not applied for mutation of revenue entry and the sale deeds, were not acted upon. It is submitted that whatever formalities are required to be completed, the same will be completed and in any case, it is the petitioner's obligation, to transfer clear title as per the assurance in favour of the purchasers.

6.2 It is submitted that on 08.09.2004, plans were sanctioned and on 29.09.2004, application for non-agricultural use permission was submitted and the Deputy Collector, Viramgam Prant, recommended that if the non-agricultural use permission is granted, there is no objection. It is only, when the Collector, had to give its opinion, that it informed the District Development Officer on 13.04.2006, not to give non-agricultural use permission. It is thereafter, that vide communication dated 16.06.2006, request for grant of non-agricultural use permission came to be rejected. It is submitted that there was permission granted by AUDA and the Page 12 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 construction was carried out by the petitioner, strictly in conformity with the plans. It is submitted that construction on the land in question in absence of non-agricultural permission, would not be a ground for rejecting the reliefs inasmuch as, subsequent permission can be granted as per Section 67 of the Code on such terms and conditions as may be prescribed by the Collector, imposing penalty.

6.3 While adverting to the aspect of delay, it is submitted that letter was addressed to the District Development Officer in the month of April, 2006; whereas, show cause notice, has been issued on 17.09.2007 for the orders passed in the year 1993 and 1994 which, would be after a period of more than 14 years. The ground that the order dated 13.12.1993 is nullity, cannot be a reason for issuing a show cause notice in the year 2007.

6.4 It is submitted that the contention as regards proceedings were only for breach of condition and the Mamlatdar, Daskroi could not have gone into the aspect of tenure, is fallacious for, order dated 07.10.1993 of the Collector, clearly issues a direction to go into the nature of the tenure, as per the provisions of Section 197 of the Code. The order of the Collector, has remained unchallenged and now, it would be impermissible for the Collector, to doubt or sit in appeal over the order of his predecessor. It is submitted that Section 197 of the Code, provides for an inquiry to be undertaken by any revenue officer and on any occasion and therefore, the Mamlatdar, being a revenue officer, is empowered to undertake inquiry under Section 197 of the Code himself. It is submitted that in any case, delegation by the Deputy Collector to Mamlatdar to undertake inquiry, is a matter of routine which would not result in breach of Section 197 of the Code inasmuch as, essential function of the decision making, is performed by the authority concerned.

Page 13 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023

C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 6.5 It is further submitted that vide letter dated 27.10.1993, the Deputy Collector, Viramgam Prant, directed the Mamlatdar, Daskroi to undertake an inquiry under Section 197 of the Code who, undertook the inquiry and passed an order dated 31.12.1993, holding that the entry of new tenure in the revenue record, is without any basis and should therefore, be removed. Such order, was accepted by the Deputy Collector, Viramgam Prant and after considering the matter afresh, took the final decision by passing an order dated 15.02.1994, holding that there was no breach of conditions and consequently, proceedings were withdrawn. Therefore, it is incorrect to say that the orders passed by the Mamlatdar and Deputy Collector, were nullity.

6.6 It is submitted that reliance placed on the judgment in the case of Jayantibhai Keshabhai Patel vs. State of Gujarat (supra), is also misplaced inasmuch as, in paragraph 7.0, contention raised was that the application made to the Deputy Collector, itself was not maintainable, as he had no authority and would have no powers. This Court, in paragraph 9.2, referred to the decision in the case of Manishaben D/o. Chunilal Harjibhai vs. Secretary reported in 2017 (0) AIJEL-HC 237040 wherein, it has been held that Section 197 of the Code vests discretion in the revenue officer to do what he seems best for ascertaining of all the essential facts in furtherance of the public good. The contention raised by the State Government that the Deputy Collector exceeded jurisdiction, was not accepted. It has been held and observed that there was no limit prescribed for inquiry under Section 197 of the Code, which can be conducted at any point of time.

6.7 Reliance placed on the judgment of this Court in the case of Sureshbhai Ramabhai Hegde vs. State of Gujarat rendered in Special Civil Application no.12131 of 2015, would be misplaced Page 14 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 inasmuch as, it has been passed in context of the facts pertaining to the transactions between private parties in admitted breach of the provisions of Section 73AA of the Code. Sub-section (4) of Section 73AA of the Code, empowers the Collector to initiate the proceedings suo motu at any time, which is not the case either in Section 211 of the Code or Rule 108(6) of the Rules. Therefore, the judgment dealt with completely different statutory scheme and would not be applicable to the facts of the present case.

6.8 Similarly, the judgment of the Apex Court in the case of State of Orissa vs. Brindaban Sharma (supra), would not be applicable as, it has been passed in the context of peculiar facts involving destruction of contemporaneous record in collusion with the officers etc. The Apex Court, in the subsequent judgment in the case of Jt. Collector Ranga Reddy Dist. & Another vs. D. Narsing Rao & Others reported in 2015 (3) SCC 695, has considered the said judgment and has held that revisional powers must be exercised within the reasonable period even in cases involving allegation of fraud.

6.9 While referring to the order of the Mamlatdar, Daskroi, it is submitted that the Mamlatdar, Daskroi, on examination of the revenue record found that: (i) in village form no.1, i.e. 'kayam khardo', the land is not stated to be of new tenure; (ii) neither any grant order or evidence about re-grant in respect of the land in question is found in original records and such entry, is missing in village form no.6; (iii) in tarij of village form no.1, there are no details of new tenure land in Sola village; (iv) that in the original Record of Rights in village form no.7/12, though 'new tenure' is mentioned but, there is no evidence in support of the same; and (v) Record of Rights for the year 1916-1917 to 1922-1923, the words 'sharti kabulat', are bracketed by replacing word 'khatedar'.

Page 15 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023

C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 6.10 It is submitted that the order of the Mamlatdar, Daskroi was an inquiry and order as well. The Mamlatdar, Daskroi has in paragraph 5, observed that there is no basis to substantiate that the land has been granted on new tenure basis. In paragraph 6 of the order, it has been stated that neither in village form no.6 nor in village form no.1, there are details mentioned of the land being of a new tenure. It is submitted that in paragraph 7, it has been observed that though 7/12 forms makes a reference of new tenure, there are no documents to substantiate such aspect. In fact, as per the circular, there has to be an order of grant on the basis of which, the endorsement 'new tenure' is made in the revenue record. It is therefore, submitted that the Mamlatdar, Daskroi, is right in concluding that there is no basis for such an endorsement and, has acted in consonance with the circular. Paragraph 8 of the order, clearly records that 'sharti kabulat', has been bracketed as per the provisions of Rule 106(4) of the Gujarat Land Revenue Rules, 1972 (hereinafter referred to as "the Rules of 1972"). Rule 106(4) of the Rules of 1972 provides that the authority, shall not erase errors but, correct any errors by bracketing the errors and inserting the correct entries by interlineation or side note. It is submitted that if the rights are diluted as per the practice, it has to be bracketed which is permissible; however, the Collector has not considered the said aspect. It is submitted that vide order dated 07.10.1993, the Collector, could have dismissed the revision application on the ground of period of 78 years, instead, directed inquiry and therefore, the State would not be right in putting the parties to prejudice.

6.11 It is submitted that the Collector, has turned blind eye to the Mamlatdar, Daskroi's finding and erred in relying upon the entry of new tenure in the revenue record as the sole basis for treating the land in question as new tenure land. It is submitted that the findings Page 16 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 of the Collector that 'kayam khardo' relied upon by the Mamlatdar, Daskroi is not proper as it reflects the position prior to the year 1901, that is prior to the insertion or introduction of the concept of new tenure, is also incorrect. It is further submitted that the stand of the respondent that the Mamlatdar, Daskroi has selectively considered the revenue record and has failed to consider the records subsequent to 1922-1923, would be erroneous inasmuch as, the Mamlatdar, Daskroi, has examined and considered the entire record in original. It is therefore, submitted that even on merits, the order of the Collector, deserves to be quashed and set aside. It is therefore urged that petition deserves to be allowed and the order of the Collector be quashed and set aside.

7. Heard Mr Mihir H. Joshi, learned Senior Advocate assisted by Mr Shamik Bhatt, learned advocate for the petitioner and Mr Meet Thakkar, learned Assistant Government Pleader for the respondent.

8. The petitioner, is aggrieved by the order dated 18.10.2007 passed by the Collector with respect to the land in question. The Collector, quashed and set aside the orders dated 31.12.1993 and 15.02.1994 passed by the Mamlatdar, Daskroi and Deputy Collector, Viramgam Prant respectively, so also consequential mutation entry nos.5664 and 5665 both dated 18.02.1994 posted in the revenue record.

9. Pertinently, in the revenue record, since the year 1915-1916, the land was running as a new tenure land and owing to the transfer in favour of Kachrabhai Jivabhai Valand, without any permission, that the proceedings for breach were initiated. Prior to the purchase of the land by the petitioner, pursuant to the order dated 11.05.1972 passed by the Deputy Collector, Viramgam Prant in relation to the breach of condition, the land in question was directed to be vested in the State Government and entry no.3292 dated Page 17 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 21.12.1972, was posted in the revenue record. After 21 years, appeal was filed by Ramabhai Rupabhai and the Collector, vide order dated 07.10.1993, quashed and set aside the order dated 11.05.1972 with a direction to the Deputy Collector, Viramgam Prant to hear and decide the case after giving an opportunity of being heard to Ramabhai Rupabhai. Necessary entry no.5584 dated 22.10.1993 was posted in the revenue record and was certified on 23.11.1993.

10. The Deputy Collector, Viramgam Prant, vide communication dated 27.10.1993, requested the Mamlatdar, Daskroi to conduct an inquiry under the provisions of Section 197 of the Code read with the Government Resolution dated 16.03.1982. Accordingly, Mamlatdar initiated the inquiry. The Mamlatdar, required the record clerk to remain present. The Mamlatdar, was of the opinion that there are no evidence available in the record to substantiate that the land is of a new tenure. Further, the Circle Inspector, was also required to verify who, submitted a report, inter alia, pointing out that the land, is shown under the head of government. As per the information and as is discernible from the order of the Mamlatdar, in the Record of Rights of the years 1916-17 to 1920-23, the name of Gordhan Dungar was mentioned and in column no.2, the same is shown as new tenure and in column no.10 'sharti kabulat', has been bracketed with further details of 'khatedar' mentioned therein. The Mamlatdar, then makes a reference of the resolution dated 16.03.1982 and more particularly, paragraph no.5.2, which provides that if it is not proved by direct or indirect or connecting evidence that the land is of a new tenure, the land does not become a new tenure land only on the basis of the details mentioned in village form no.7/12. The Mamlatdar, was therefore, of the opinion that no supporting record is available to substantiate whether it is a government land and has been granted on a new tenure basis. The Page 18 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 Mamlatdar, noted that there is no reference of 'kabuliyat' available on record. What weighed with the Mamlatdar, was that the land, is an ancestral land and had been acquired by Ramabhai Rupabhai in succession.

11. Inter alia observing thus, the Mamlatdar, Daskroi, held that the endorsement 'new tenure', is without any basis and the same, requires to be removed. With this, the Mamlatdar, Daskroi has passed an order directing removal of the endorsement 'new tenure'. The Deputy Collector, Viramgam Prant, was of the opinion that the order dated 31.12.1993 of the Mamlatdar, Daskroi, is reasonable and the notice issued for breach of condition, does not require reconsideration.

12. According to the petitioner, the petitioner purchased the land in question vide registered sale deed dated 07.03.1994, followed by mutation of entry no.5700 dated 16.03.1994 in the revenue record and further followed by certification on 16.04.1994. The petitioner, since was desirous of developing the land, submitted an application to AUDA for grant of development permission which, came to be granted by an order dated 08.09.2004. The petitioner, thereafter, applied for non-agricultural use permission. Requisite opinions were requested for from various offices and according to the petitioner, opinions were received, favouring grant of non-agricultural use permission. It is the case of the petitioner that despite which, Collector, vide letter dated 13.04.2006, instructed that non- agricultural use permission, may not be granted with a further direction, restraining the petitioner from putting up construction. Considering the letter of the Collector, the District Panchayat, though was in favour of grant of non-agricultural use permission, rejected the same by passing resolution no.113 dated 15.04.2006 which, was communicated to the petitioner through the office of the Page 19 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 District Development Officer vide letter dated 16.06.2006.

13. The above-referred orders passed by the Mamlatdar and Deputy Collector, were taken in revision by the Collector who, has passed a detailed order. The Collector held that the Mamlatdar, Daskroi, has not properly verified the record inasmuch as, the Record of Rights, namely, village form no.6 of the years 1915-1916 to 1922-1923, the land in question is shown to be of a new tenure and in the name of Gordhan Dungar. The Collector, also observed that in column no.10 under the heading 'the nature of right and how it has been acquired', it has been mentioned 'sharti kabulat'. Similarly, in record of the years 1924-1925 to 1927-1928, the land is shown of a new tenure and it continued to be shown as new tenure. The Collector, therefore, was of the opinion that the land since the year 1915-1916, has been possessed by the occupier as a new tenure land which record, has not been considered by the Mamlatdar, Daskroi. What has been considered by the Mamlatdar, Daskroi is the 'kayam kharda' of the year prior to 1901. The term 'new tenure', has been introduced by way of proviso to Section 68 in the year 1901 and therefore, the order of the Mamlatdar, Daskroi, is illegal and bad. The Collector, was also of the opinion that the position prevailing since the year 1915-1916, has been accepted by the occupier which, has been disturbed by the Mamlatdar, Daskroi after almost 78 years, that is in the year 1993. Reference is made of Section 135J of the Code, which provides for presumption of correctness of entries in Record of Rights and register of mutations. The burden of proof, was on a person claiming that it is not a new tenure land, and the Mamlatdar, Daskroi, without requiring the applicant to prove has straightaway concluded that there are no orders or sanad or evidence available to substantiate the endorsement 'new tenure'. The Collector, inter alia, observing thus, quashed and set aside the order dated 31.12.1993 of the Page 20 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 Mamlatdar, Daskroi, so also order dated 15.02.1994 of the Deputy Collector, Viramgam Prant and consequent entry nos.5664 and 5665 both dated 18.02.1994. The petitioner, is aggrieved by the said order.

14. In view of the above, the issue which arises for the consideration of this Court, is as to whether the Collector, considering the facts of the case, rightly quashed and set aside the above-referred orders passed by the Mamlatdar, Daskroi and the Deputy Collector, Viramgam. To decide the said issue, certain facts are required to be gone into.

15. As per village form no.6 of the years 1915-16 to 1922-23, the land in question, was shown as of new tenure possessed by Shri Gordhan Dungar. According to the nature of rights indicated in column 10, the land is possessed and occupied on the basis of 'sharti kabulat' which, is in bracket. So is the position prevailing of the land in question in the Record of Rights of the years 1924-25 to 1927-28. Significance of the bracket, can be traced out in sub-rule (4) of Rule 106, which reads thus:-

"106. (1) Every mutation shall be posted in the Diary by the village accountant and examined by the Circle Inspector and shall be read out and explained by the latter to all persons present. (2) The Circle Inspector shall initial all entries so examined. (3) If any person adversely affected admits an entry to be correct, the Circle Inspector shall note the admission. (4) If any interested person disputes the correctness of an entry, the Circle Inspector shall not erase but shall correct any errors admitted by all parties either by bracketing the eoors and inserting the correct entries by interlineation or side note or by an entirely fresh entry, in either case authenticated by his signature; if the error is not admitted, he shall enter the dispute in the Register of Disputed Cases (Form Q), and it shall be disposed of under rule 108."

16. Sub-rule (4) of Rule 106 provides that if any interested person disputes the correctness of the entry, the Circle Inspector shall not Page 21 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 erase, but shall correct any errors admitted by all parties either by bracketing the errors and inserting the correct entries by interlineation or side note or by an entirely fresh entry, in either case, authenticated by his signature; if the error is not admitted, the dispute shall be entered in the register of disputes.

In the present case, the word 'sharti kabulat' is in bracket and besides it, 'khatedar' has been mentioned. Therefore, the entry, has been modified by bracketing the word 'sharti kabulat' and adding the word 'khatedar'. Therefore, instead of erasing the entry, it has been modified. Neither in the order of the Collector nor in the proceedings before this Court, anything has been placed on record by the State Government to dislodge the aspect of 'sharti kabulat', being bracketed.

17. Pertinently, in the Record of Rights, i.e. village form no.6 of the years 1916-17 to 1922-23 and 1924-25 to 1928, though the 'sharti kabulat' was bracketed, in column no.2, the endorsement 'na sh' continued. If this was the position, in the 'kayam kharda' prepared of the year 1967, on the basis of the orders passed by the Settlement Commissioner & Director of Land Records and others, there ought to have been some details provided of the restricted tenure against the survey no.414 under the heading 'satta prakar'; however, such details, are missing. At the end of the register of 'kayam kharda', the details have been summed up of the lands. Under the category A-1, there are further sub-categories and two of which are 'old tenure' and 'new tenure'. Against the 'old tenure', details have been given of the total lands together with the assessment; however, against the 'new tenure', the details are blank. Had the land in question been of a new tenure, as indicated in the record of rights of the year 1916-17 and thereafter, then, against the survey no.414 and in column no.2 under the heading 'satta prakar' of the 'kayam khardo' of the year 1967, the land in Page 22 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 question ought to have been mentioned as 'new tenure', but no. It is not clear as to how in the 'kayam khardo' of the year 1984 against the survey no.414 in column no.2 titled 'satta prakar', there is an endorsement 'na sh', but in the end, where the details of the lands have been summed up category-wise, against the entry 'new tenure', the details are blank. Hence, the details mentioned in revenue record, namely, Record of Rights, i.e. village form no.6 on one hand and 'kayam khardo', i.e. village form no.1 on the other, are inconsistent and not in sync with each other.

18. The petitioner, in support of their grievance, has placed reliance on the judgments in the case of Bhikaji Maganji Thakore vs. State of Gujarat rendered in Special Civil Application no.7878 of 1996 and in Letters Patent Appeal no.626 of 1997 and other allied matters to contend that view has been taken that entry of new tenure, in the 'kayam khardo', is required to be removed in absence of specific orders treating the land as a new tenure land. Relevant paragraphs 3 and 4 of Letters Patent Appeal no.626 of 1997 and allied matters, read thus:-

"3. It is agreed that initially there was a dispute in respect of the nature of the tenure of the two pieces of land bearing Survey Nos.68 and 69. So far as the land bearing Survey No.68 is concerned a finding was given by the concerned authorities that it was not a new tenure land and therefore, the dispute remained only with respect to land bearing Survey No.69. The whole dispute centres round the mutation entry no.809 dated June 2, 1956 under which the said land has been described as the land of new tenure. Before the learned Single Judge the history of the land bearing Survey No.69 was sought to be traced and on behalf of the State it was pointed out that in "Kayam Kharada"

there was a note to the effect that the land bearing Survey No.69 would be the land of new tenure. With regard to this land, i.e. Survey No.69 there was an entry saying "Na- Sa", i.e. "Navi Sharat" or new tenure. The learned Single Judge, after perusing the entire record which was made available to him and after hearing the learned counsel who appeared on behalf of the State of Gujarat came to the conclusion that there was nothing on record to justify the posting of mutation entry no.809 dated June 2, 1956 saying that the land bearing Survey No.69 would be a land of new tenure. A contention was raised before the learned Single Judge by the learned Govt. counsel that there could Page 23 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 be a miscellaneous alienation in favour of the original holder and that said alienation would have been abolished and for this purpose reliance is placed on the provisions of the Bombay Merged Territories Miscellaneous Alienation Abolition Act, 1955. However, this contention did not find favour with the learned Single Judge and in our opinion rightly so on the ground that there was absolutely no material to warrant a conclusion that there was alienation in favour of anybody including the original occupant or the land holder and that later on said miscellaneous alienation came to be abolished under the said Act of 1955. This contention was rejected by the learned Single Judge in absence of any material in support of it. We do find that in absence of any material on record, rejection of this contention by the learned Single Judge is absolutely right. There is no basis to hold that the land in question is a new tenure land merely because there was a short note in the "Kayam Kharada" and subsequent mutation entry no.809 dated June 2, 1956. Even during the course of hearing of this appeal, we called upon the learned Assistant Govt. Pleader to substantiate as to what was the source or the authority for the purpose of making the said note in the "Kayam Kharada" and the subsequent mutation entry no.809 dated June 2, 1956 so as to take the land in question to be a new tenure land and also to explain that when the land bearing Survey No.68 which was identical to that of Survey No.69 was taken as a land of old tenure by the Government itself, how the case of the land of Survey No.69 was different, but no explanation has been given and no material has been furnished and no record has been made available even before us to justify the difference of two views for identical lands. However, learned Asstt. Govt. Pleader has argued that several orders have been passed by various authorities right from the City Deputy Collector, Collector and the Govt. in Revision time and again and therefore, this Court while examining the matter under Article 226 of the Constitution of India should not go into the factual aspect with regard to the entry no.809 dated June 2, 1956 so as to set aside it and for that purpose the procedure as has been prescribed under the Bombay Land Revenue Code should have been followed and the appellants ought to have challenged this entry in accordance with the procedure prescribed under the Code, and this Court should not have taken the exercise for quashing the said entry in writ jurisdiction. In support of this submission, learned counsel has cited a decision of the Supreme Court in the case of H.B. Gandhi, Excise and Taxation Officer- cum-Assessing Authority, Karnal and others v. M/s Gopinath & Sons and others, reported in 1992 Supp. (2) SCC 312. In this case of H.B. Gandhi (supra) the Supreme Court has observed that it is a judicial review of the decision making process and not of the decision itself, that High Court cannot reappreciate the primary or perceptive facts found by the fact finding authority under statute and where hierarchy of appeals is provided by the statue and the statutory remedy is there, it must be first exhausted. The principle of judicial review and exhaustion of the statutory remedy is settled. However, in the facts of the present case we find that there is no question of review of the decision. The question as to whether the land in question was a new tenure land or not on the basis of the mutation entry no.809 dated June 2, 1956, had been gone into in several proceedings and a reference in this regard may be made to the order passed by the Secretary, Revenue Department (Appeals) dated 9.3.1994 as Annexure 'A' with the petition, wherein it is stated in Page 24 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 para 2 that entry no.809 had been made without giving any prior notice as required under sec.135D of the Land Revenue Code, that the factors and the grounds for which land under Survey No.68 has been found to be of old tenure had not been taken into consideration by the City Deputy Collector with regard to the land bearing Survey No.69. In this very order dated 9.3.1994, it was further mentioned in para 5 that no Sanad had been issued with regard to the land of this Survey No. in which it was registered as a new tenure land or that the Govt. had granted this land or that it was by way of Inam or Jagir under the Tenancy Act or that it was a case of regrant and there was no such order with regard to the land of Survey Nos. in question. It has been then recorded in this order dated 9.3.1994 that the purchasers of this land were the employees of Ahmedabad Municipal Corporation, and they had constructed their houses and were living there. They were bona fide purchasers of the land in dispute and in case now this land is treated as Khalsa land they will be subjected to great financial loss and therefore, the matter was required to be considered sympathetically. It was after this order dated 9.3.1994 that proposals were made by the Collector, Ahmedabad on 22.4.1994. There is also a document dated 22.7.1994 annexed with the Special Civil Application at Annexure 'E', i.e. the letter written by the District Inspector of the Land Records sent to the Municipal Employees, in which there is a categorical mention about both the survey nos.69 and 74. After considering the "Kayam Kharda" for the purpose of verification there was nothing in the record to show that the lands of survey nos. mentioned in this letter including survey nos.69 and 74 were registered as new tenure lands. Even in the order passed, way back on 14.8.1992 by the Deputy Collector, it has been mentioned with regard to entry no.809 dated 2.6.1956 that it had percolated from the past. It is, therefore, clear that what was the basis of entry no.809 and as to whether this entry had any source in the record was a question which had been considered by various authorities while passing orders. Therefore, when the mater came up before the learned Single Judge, the learned Single Judge on the basis of the record and after hearing the parties could certainly examine this question as to whether this entry had any basis or not? After hearing all the parties and after perusing the record, the learned Single Judge found that such entry had no basis, and therefore, the same was liable to be set aside. It, therefore, cannot be said that the learned Single Judge has overstepped the limits of the judicial review. For the reasons aforesaid, we find that there is no scope for interference with the view taken by the learned Single Judge. We agree with the reasons given by the learned Single Judge and the conclusion arrived at by him. Reliance has been placed by Mr.Oza, Senior Counsel, on the decision in the case of the Comptroller and Auditor General of India, Gian Prakash, New Delhi and another v. K.S. Jagannathan and another, reported in AIR 1987 SC 537. In this case while considering the scope of Article 226 of the Constitution, the Supreme Court has expressed in no uncertain terms that the High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Govt. or the public Page 25 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 authority should have passed or given had it properly and lawfully exercised its discretion. In the facts of the present case the matter had been litigated for number of years. The matter was remanded and re- remanded and it was considered more than once by the appellate as well as revisional authorities, namely, the Collector and the Govt. itself and after such a series of screening when the matter came up before the learned Single Judge under Article 226 of the Constitution, he found that there was no basis to sustain entry no.809 and he has set aside the same, then how can it be said that he has overstepped the limits of judicial review. We also do not agree with the learned Asstt. Govt. Pleader that for the purpose of challenging this entry the parties should have been relegated even at this stage to undergo the whole exercise afresh and allow the lis to continue, more particularly when the Govt. had nothing with it on record to support the said entry before the learned Single Judge and so is the case even before us.

4. This was with regard to land bearing Survey No.74. It is very clear from the impugned order dated 3.8.1998 that the facts were identical. The facts with regard to the land bearing Survey No.74 are also identical as are obtaining in the case of land bearing Survey No.69. In para 9 of the judgement, the learned Single Judge has categorically mentioned that the learned Asstt. Govt. Pleader was not in a position to produce any record to show as to why new tenure entry was made in respect of land of Survey No.74 or any other land covering entry no.809. Therefore, it was not possible to distinguish this case from the case as it was in Special Civil Application No.7878 of 1996. The learned Single Judge has also given reasons at item no.(iii) in para 10 of the judgement as to why the petition could not be thrown on the ground of delay and following the order passed in Special Civil Application No.7878 of 1996 dated 4.2.1997, he has allowed the petition. We do not find any reason to take a view different than what has been taken by the learned Single Judge."

19. As against this, reliance is placed by the learned Assistant Government Pleader on the judgment in the case of Jayantibhai Keshabhai Patel vs. State of Gujarat (supra) which, is in proximity to the factual aspects in the case on hand. The subject matter were lands bearing survey nos.832/1, 832/2 and 835 of village Sola, taluka Daskroi. Facts were that the lands, were reflected as new tenure lands. An application thereafter, was made in the year 2001 to the Deputy Collector, inter alia, praying that the endorsement new tenure be deleted since the same is by mistake, as the ancestors possessed the land by way of ownership since the year 1939-40. Reliance was also placed in support of their case on the Page 26 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 judgment in the case of Bhikaji Maganji Thakore vs. State of Gujarat (supra). Similar such contention was raised by the petitioners therein that there is no material to indicate that the land is a new tenure land and considering the history of the said land, from the year 1914 and more particularly, various entries in the revenue record, the Deputy Collector, was justified, in acceding to the request of the owners of the land that the endorsement new tenure needed to be deleted.

20. The writ petition, was strongly opposed by the State Government, raising various contentions and this Court, formulated the questions to be decided, namely, (1) Whether the land in question can be termed as 'New Tenure' land in absence of any material to support the entry of 'New Tenure' land?

(2) Whether, the length of continuing such entry is proof of such land being 'New Tenure' land?

(3) Whether, making of an entry in the revenue record has any evidentiary value in absence of any proof in support of the same?

(4) Can the land be a new tenure land, when the same is not being granted by the State Government?

21. This Court, held and observed that the judgment and order dated 04.02.1997 passed in Special Civil Application no.7878 of 1996 and others as well as the judgment of the Division Bench confirmed upto the Apex Court, would have no applicability considering the record of the year 1914, which pertains to survey nos.832/1, 832/2 and 835 owned by Fula Dhola and Pagi Visa Gobar respectively reflected as new tenure land from the Record of Rights and village form no.6 of the years 1914 to 1917 and 1921 to 1923. This Court, also noted that village form no.1A reflects land bearing Page 27 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 survey no.835 of Pagi Visa Gobar, shown and mentioned as "sharti kabulat". Therefore, this Court, considered the documents, namely, village form no.6 of the year 1914 and village form no.1A etc. Relevant paragraphs of the judgment, i.e. paragraphs 9.6, 9.7, 9.8 and 9.10 read thus:-

"9.6 Here, it would not be out of place to make a mention, at this stage of the controversy that revolves around the words 'New Tenure' in respect of the land in question in present petition. The said land, from the year 1914, was under the possession by one Shri. Visa Gobar, under the head of possessor of surplus land or 'Inami Land'. It had been endorsed as 'Sharati Kabulat' (Restricted Tenure), which, otherwise, would mean 'New Tenure' land. In the Village Form No. 1-A, this aspect has been mentioned as record of facts. Thus, even in the year 1914, the said land was termed as a 'New Tenure' land, which is also reflected in the relevant record, i.e. Village Form No.6 and also mentioned in other revenue records. The State has placed on record, a copy of the Village Form No.6 of the year 1914 and other revenue records along with affidavit-inreply. It is also on record that another land bearing Survey No. 832/32 also had been issue of Village Form No. 1-A, which is in the name of one Fula Dhola, and is endorsed as 'Sharti Kabulat' (Restricted Tenure), again. Thus, after about 87 years, when these parcels of lands continued to be called as 'New Tenure' land, the owners chose to approach the Dy. Collector for removing the deficiency in the revenue record under Section 197 of the Code, which directed the words 'New Tenure' to be removed from the revenue record on 28.12.2001.

It, thus, seems to be an error, inasmuch as Revenue Survey No. 835 was sold to the present petitioners by the predecessors in title of the concerned land by way of registered sale deed on 15.12.2003 and the mutation of such entry being Entry No. 7804 was done on 03.01.2004, which came to be certified on 23.02.2004. The petitioners repeatatively emphasized that after the Dy. Collector, Viramgam Prant, had exercised powers under Section 197 of the Code and corrected the deficiency in revenue record by removing the words 'New Tenure', they had chosen to purchase the said land for the same being an 'Old Tenure' land. The timings of the application by the purchasers-intitle, soon after the decision of the Apex Court in other parcels of land of the Ghatlodiya village, is not a mere coincidence and the purchase on the part of the present petitioners also within a period of one year thereunder, when the words 'New Tenure' were removed from the record and the entry of 'Old Tenure' was mutated, cannot be seen as free from that Page 28 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 aspect. It is to be noted that the reliance placed on the judgment and order dated 04.02.1997, passed in Special Civil Application No. 7878 of 1996 and the judgment and order dated 08.08.2000 in Special Civil Application No. 10776 of 1998 as well as of the LPA Bench and that of the Apex Court would have no applicability so far as the land in question is concerned. The Court needs to specifically remember that in those parcels of lands, where this Court and the Apex Court held in favour of these petitioners and quashed and set aside the order of the Collector and SSRD and were not relegated to the authorities specifying the tenure of the land and the availability of contemporaneous record in that regard, whereas, as mentioned herein above, learned Addl. Advocate General has produced record of the year 1914 in the instant case, where Sr. No. 1513 pertains to Survey No. 832/1 and 1515 pertains to Survey No. 832/2. It is categorically mentioned in Survey No. 832/1 fact it is a new tenure land and Survey No. 835, which is at Sr. NO. 1519, admeasuring 7 acres 21 gunthas, owned by Visha Gobar, is also reflected as a 'New Tenure' land from the record of rights and the Village Form No.6 between 1914 to 1917 and 1921 to 1923. In Village Form No. 1-A, the register from 1914-1915 and 1916 reflects the land bearing Survey No. 835 at Sr. No. 1452, where the name of Visha Gobar is shown and it is mentioned as 'Sharti Kabulat' (Restricted Tenure) land. Likewise, the land in the name of Fula Dhola bearing Sr. No. 1447, which is in respect of Survey No. 832/2 is also a 'Sharti Kabulat' (Restricted Tenure) land.

9.7 Here, apt would be to refer to the Indian Evidence Act, 1872, more particularly, Section 90, thereof. Sections 79 to 90A of the Evidence Act, which comes under the heading 'Presumption', which speaks of any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports' to be executed and attested.

9.8 In the instant case, the documents produced by the State is from the custody, which this Court considers proper, as these are the record of Village Form No.1-A and Village Form No.6, which were from the record of rights of the years 1914- 15, 1915-16 and onwards have been produced. Therefore, the presumption may be drawn by this Court, as permissible under Section 90 of the Indian Evidence Act. That being the case, there is noting to question the genuineness of those documents and it can be presumed that it were duly executed by the person, by whom it purports to be executed. The land having been given to the original owners and their predecessors-in-title as 'Sharti Kabulat' (Restricted Tenure) Page 29 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 land. This, by all means, a new tenure land.......

9.10 The then Dy. Collector, Viramgam Prant, had they chosen to oblige the predecessor-in-title of the present petitioner and declared the land in question as 'Old Tenure' land which consequently would facilitate the transfer of land without any permission of the Collector, which also would be huge procedural hazard and also the payment of premium as prescribed in the said resolution. It hardly requires any guesswork, as to why the predecessor-in-title of the present petitioner chose to wake-up from their slumber after so many years i.e. the year 1914 and that too, when in some of the parcels of the adjoining lands, the order of the authorities concerned had been quashed and set aside by this Court and confirmed by the Apex Court."

22. The petitioners, have tried to distinguish by pointing out that no submissions were made or considered in respect of 1955 and 1957 circulars, memorandum or in respect of bracketing of errors as per Rule 106(4) of the Rules of 1972 or in respect to 'kayam kharda'. With this, it is urged that the judgment cannot be a binding precedent for adjudicating the present petition and rightly so. As discussed herein above, sub-rule (4) of Rule 106 makes a provision for bracketing the error and inserting the correct entries. In the present case, the term 'sharti kabulat', has been bracketed and the respondents, have failed to produce anything to the contrary. Hence, the petitioner, is right in contending that the judgment in the case of Jayantibhai Keshabhai Patel vs. State of Gujarat (supra), cannot be made applicable to the facts of the present case and what would apply is the judgment in the case of Bhikhaji Maganji Thakore vs. State of Gujarat (supra). Therefore, the order of the Mamlatdar, was in conformity with the record and the Collector, was in error in setting aside the said order, and hence, the order of the Collector, deserves interference on this ground.

23. But, the promptness with which the order was passed by the Collector, Deputy Collector and inquiry by the Mamlatdar apropos the remand, raises curiosity for the reason discussed herein below.

Page 30 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023

C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023

24. Perceptibly, from the year 1916-17 and thereafter, the land, continued to remain as a new tenure but, no steps were taken either by Shri Ramabhai Rupabhai or his predecessor. Subsequently, order dated 11.05.1972 came to be passed by the Prant Officer, Viramgam Prant, directing vesting of the land in the State Government for breach of condition which, remained unchallenged for almost 21 years. For almost 78 years, no steps were taken and all of a sudden in the month of January, 1993, Rameshbhai Rupabhai filed an appeal on 07.01.1993, and the Collector, vide order dated 07.10.1993 allowed the same, quashing and setting aside order dated 11.05.1972 of the Deputy Collector. It is interesting to note that the delay appears to have been condoned, without there being any separate application seeking condonation of delay. Whether it was permissible to the Collector to have condoned the delay of 21 years without passing any separate order and in absence of any sufficient explanation, much less any explanation and only on the basis that Shri Ramabhai Rupabhai was not heard? This Court, is mindful of the fact that the said order, is not challenged and has been acted upon and implemented.

25. Clearly, from 11.05.1972 to 07.10.1993, the land, remained of the State Government and possibly, it was within the knowledge of the owner that the land has been vested in the State Government in the year 1972. It is curious to note as to how Shri Ramabhai Rupabhai, could have executed an agreement to sell (on the stamp paper purchased in the month of December, 1992) in favour of Shri Ganesh Sagar Co-operative Housing Society Limited on 12.02.1993. It is noteworthy that covenant 5, makes a reference of permission for the purpose sale. If at all, the land was of an old tenure, there was no need of such permission. Possibly, the said clause was for the reason that the parties were of the belief that the land was of a new tenure.

Page 31 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023

C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023

26. Further, the agreement to sell came to be executed on the same date, i.e. 07.01.1993 (i.e. the date of filing of appeal) and was registered on 12.02.1993, i.e. during the pendency of the appeal before the Collector. The appeal, came to be decided on 07.10.1993 and thereafter, the registered sale deed, came to be executed in the month of March, 1994. Contention is raised by the petitioners that they are the bonafide purchasers, as the land, was purchased in the month of March, 1994, i.e. after passing of the order by the Collector dated 07.10.1993, cannot be accepted, considering the fact that agreement to sell was already executed in the month of February, 1993.

27. It is also required to be noted that after the order of Collector on 07.10.1993, the Deputy Collector wrote a letter on 27.10.1993 and in December, 1993, the order is passed by the Mamlatdar and Deputy Collector on February, 1994; so, within a span of little more than one year, the land got converted into old tenure. The restrictions on record, which were there for 78 years, got deleted within a period of little more than one year. What is unusual is the time lag and the promptness shown by the authorities. Be that as it may.

28. Moreover, vide order dated 07.10.1993, the Collector, issued the direction to the Deputy Collector and as per the said direction, the Deputy Collector, was to find out as to whether the contention of Ramabhai Rupabhai that the land is not a new tenure land, is to what extent correct. The inquiry was to be conducted as per the provisions contained in the resolution dated 16.03.1982 of the revenue department read with Rule 197 of the Code. Therefore, it is clear that it was the Deputy Collector, who was to test the legality and validity of the contention of Shri Ramabhai Rupabhai; instead, the Deputy Collector, vide communication dated 27.10.1993, Page 32 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 referred the matter to the Mamlatdar.

29. As noted herein above, the Mamlatdar, considered the documents and concluded that there are no supporting evidence or orders to indicate that the land, is not a new tenure land but, an old tenure land. Moreover, the Deputy Collector, simply accepted the order and withdrew the notice on the ground that it does not require any reconsideration, without any detailed inquiry. It was expected of the Deputy Collector to have applied its mind; however, he simply accepted the order of the Mamlatdar and dropped the proceedings. Be that as it may.

30. This takes the Court to the contention of exercise of powers beyond reasonable period. Neither the order of the Mamlatdar nor the Deputy Collector, was brought to the notice of the Collector or the higher authorities. Nothing contrary is placed on record that the Collector, was aware about the passing of the order dated 31.12.1993 and 15.02.1994 of the Mamlatdar and the Deputy Collector respectively. It ought to have been brought to the notice of Collector, as the land in the revenue record was shown as a new tenure, conversion from new tenure to old tenure was subject to payment of premium. In absence of any knowledge of said orders to the Collector, the Collector cannot be expected to have initiated any proceedings. The Collector also, would have been unaware about the entry nos.5664 and 5665, both dated 18.02.1994, as the entries were certified at the level of the Mamlatdar and Talati-cum-Mantri and had never travelled to the level of the Collector.

31. However, the fact remains that powers are to be exercised within the reasonable period. It is well settled position of law that if the statute does not prescribe the time limit for exercise of the revisional powers, it does not mean that such powers can be exercised at any point of time. In the judgment in the case of Page 33 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 Chandulal Gordhandas Ranodriya vs. State of Gujarat (supra), in paragraphs 13 to 22, it has been observed thus:

"13. In our opinion, it is well settled that even though void transaction if is allowed to remain effective for considerable long period, the authority named therein will be precluded from initiating proceedings to annul it. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed for a considerable period and by a passage creating valuable rights in favour of a considerable section of people, like the appellants in the present case, it is difficult to accept the proposition that despite the change the competent authority under the Act would be entitled to exercise powers under Section 84(C) of the Act at any point of time.

14. It will be profitable to quote Section 84(C)(1) of the Act as under :

"84C. Disposal of land, transfer or acquisition of which is invalid.

(1) Where in respect of the transfer of acquisition of any land made on or after the commencement of the Amending Act, 1955, the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of this Act, the Mamlatdar shall issue a notice and hold an inquiry as provided for in Section 84B and decide whether the transfer or acquisition is or is not invalid."

15. On plain reading of Section 84(C)(1) of the Act, it is apparent that if the Mamlatdar suo motu or on the application of any person interested in such land, has reason to believe that such transfer or acquisition of land has become invalid under any of the provisions of this Act, then under such circumstances, the Mamlatdar is empowered to issue a notice and hold an inquiry as provided for in the Act and decide whether the transfer or acquisition is or is not invalid. Section 84(C) does not draw any distinction so far as the provisions of Section 43 of the Act is concerned. The words used in Section 84(C) of the Act are "any of the provisions of this Act". Such being the position, we are not impressed with the submission of Mrs.Calla that if there is a breach of Section 43 of the Act, then in such cases, the concept of exercise of powers within reasonable period of time would not be applicable.

16. In the case of Employees State Insurance Corporation v. C.C. Santhakumar reported in 2007(1) SCC 584, the Page 34 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 Supreme Court has elaborately explained this principle of action to be taken within a reasonable period of time. It would be appropriate for us to quote paragraph Nos.35, 36, 37, 38, 39 and 40.

"35. A "reasonable period" would depend upon the factual circumstances of the case concerned. There cannot be any empirical formula to determine that question. The court/authority considering the question whether the period is reasonable or not has to take into account the surrounding circumstances and relevant factors to decide that question.

36. In State of Gujarat v. Patel Raghav Natha (1969 (2) SCC 187) it was observed that when even no period of limitation was prescribed, the power is to be exercised within a reasonable time and the limit of the reasonable time must be determined by the facts of the case and the nature of the order which was sought to be varied. This aspect does not appear to have been specifically kept in view by the Division Bench.

Additionally, the points relating to applicability of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977, and even if it is held that the Act was applicable, the reasonableness of the time during which action should have been initiated were also not considered. It would be hard to give an exact definition of the word "reasonable". Reason varies in its conclusions according to the idiosyncrasy of the individual and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic stands now like the jingling of a child's toy. But mankind must be satisfied with the reasonableness within reach; and in cases not covered by authority, the decision of the Judge usually determines what is "reasonable" in each particular case;

but frequently reasonableness "belongs to the knowledge of the law, and therefore to be decided by the courts". It was illuminatingly stated by a learned author that an attempt to give a specific meaning to the word "reasonable" is trying to count what is not a number and measure what is not space. It means prima facie in law reasonable in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know. (See: Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar (1987 (4) SCC 497) and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. (1989 (1) SCC 532). As observed by Lord Romilly, M.R. in Labouchere v. Dawson (41 LJ Ch 472) it is impossible a priori to state what is reasonable as such in all cases. You must have the particular facts of each case established before you can ascertain what is reasonable under the circumstances. Reasonable, being a relative term Page 35 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 is essentially what is rational according to the dictates of reason and not excessive or immoderate on the facts and circumstances of the particular case.

37. These aspects were highlighted in Collector and Others v. P.Mangamma and Others (2003 (4) SCC 488).

38. As observed in Veerayee Ammal v. Seeni Ammal (2002 (1) SCC 134), it is "looking at all the circumstances of the case; a "reasonable time" under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea".

39. According to Advanced law Lexicon by P. Ramanatha Aiyar 3rd Edition, 2005 reasonable time means as follows:

"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer.

"Reasonable Time" is defined to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case.

If it is proper to attempt any definition of the words "reasonable time", as applied to completion of a contract, the distinction given by Chief Baron Pollock may be suggested, namely, that a "reasonable time" means as soon as circumstances will permit.

In determining what is a reasonable time or an unreasonable time, regard is to be had to the nature of the instrument, the usage or trade or business, if any, with respect to such instrument, and the fact of the particular case.

The reasonable time which a passenger is entitled to alighting from a train is such time as is usually required by passengers in getting off and on the train in safety at the particular station in question.

A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so Page 36 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than "directly" such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.

Reasonable time always depends on the circumstances of the case. (Kinney) It is unreasonable for a person who has borrowed ornaments for use in a ceremony to detain them after the ceremony has been completed and the owner has demanded their return. (AIR 1930 Oudh 395).

           The expression "reasonable time" means so much    time
           as   is   necessary   under    the circumstances to do
           conveniently what the contract    or    duty   requires

should be done in a particular case". [See: Joseph Severance v. Benny Mathew (2005(7) SCC 667)]

40. In all these cases at hand the factual aspects have not been examined, because the grievance appears to have been focused on the applicability of Section 77 (1A)

(b)."

17. While dealing with suo motu revisional power under Section 84(C) of the Act, 1976 the Supreme Court in Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim, reported in (1997) 6 SCC 71, held that generally where no time limit is prescribed for exercise of powers under statute, it should be exercised within a reasonable time. This is what the Supreme Court said :

"Section 84-C of the Act does not prescribe any time for initiation of the proceeding. But in view of the settled position by several judgments of this Court that wherever a power is vested in a statutory authority without prescribing any time-limit, such power should be exercised within a reasonable time. In the present case the transfer took place as early as in the year 1972 and suo motu enquiry was started by the Mamlatdar in September 1973. If sale deeds are declared to be invalid the appellant is likely to suffer irreparable injury, because he has made investments after the aforesaid purchase. In this connection, on behalf of the appellant reliance was placed on a judgment of Justice S.B. Majmudar (as he then was in the High Court of Gujarat) in State of Gujarat v. Jethmal Bhagwandas Shah (Spe.WA No. 2770 of 1979) disposed of on 1-3-1990, where in connection with Section 84-C itself it was said that the power under Page 37 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 the aforesaid section should be exercised within a reasonable time. This Court in connection with other statutory provisions, in the case of State of Gujarat v. Patil Raghav Natha (1969) 2 SCC 187) and in the case of Ram Chand v. Union of India (1994) 1 SCC 44) has impressed that where no timelimit is prescribed for exercise of a power under a statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time. We are satisfied that in the facts and circumstances of the present case, the suo motu power under Section 84-C of the Act was not exercised by the Mamlatdar within a reasonable time."

18. Recently, in the case of State of Punjab and Others v. Bhatinda District Cooperative Milk Producers Union Ltd.[JT 2007 (12) SC 314: 2007(11) SCC 363] while dealing with the power of revision under Section 21 of the Punjab General Sales Tax Act, 1948, it has been held:

"17. A bare reading of Section 21 of the Act would reveal that although no period of limitation has been prescribed therefore, the same would not mean that the suo motu power can be exercised at any time.

18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors.

19. Revisional jurisdiction, in our opinion, should ordinarily be exercised within a period of three years having regard to the purport in terms of the said Act. In any event, the same should not exceed the period of five years. The view of the High Court, thus, cannot be said to be unreasonable.

Reasonable period, keeping in view the discussions made hereinbefore, must be found out from the statutory scheme. As indicated hereinbefore, maximum period of limitation provided for in subsection (6) of Section 11 of the Act is five years."

19. It must be fairly said that if the statute does not prescribe time limit for exercise of revisional powers, it does not mean that such powers can be exercised at any point of time even if there is a breach of Section 43 of the Act, which is a provision which relates to a new tenure land, rather it should be exercised within a reasonable period of time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. It is clear from various judgments of the Supreme Court that where a statutory provision for exercise of any suo motu powers of revision does not prescribe any limitation, the Page 38 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 powers must be exercised within a reasonable period of time even in the case of transaction which would be termed as void transaction.

20. Thus, so far as the first aspect of the matter is concerned, we hold that the learned Single Judge was not justified in taking the view that as the breach complained of is as regards Section 43 of the Act and as the land is a new tenure land, the powers to initiate action could be exercised at any point of time.

21. Having taken the view that in the present case the authorities could not have initiated proceedings under Section 84(C) of the Act, after a period of almost 28 years, the only benefit that could accrue in favour of the appellants is that the land in question would not vest with the Government. However, the nature and character of the land being a new tenure land will remain as it is and, therefore, the appellants will not be in a position to make use of the land for any other purpose.

22. At this stage, we may now consider the second part of Mr.Majmudar's submissions that his clients i.e. the appellants, are ready and willing to deposit the amount of premium which the authorities may fix for the purpose of getting the land converted from new tenure to old tenure. If the appellants want to put the land in question to a Non- agricultural Use, then it is mandatory for them to get the land converted from new tenure to old tenure and for that purpose ordinarily the original owner has to prefer such an application i.e. in the present case Babarbhai, who was the protected tenant holding the land in question. However, almost 28 years have elapsed and we do not know whether as on date Shri Babarbhai is alive or not and what is the position so far as his legal heirs are concerned. In such circumstances, we permit the appellants to prefer an appropriate application before the competent authority with a prayer that the new tenure land be converted to old tenure land by fixing the amount of premium payable as on today. If such an application is preferred by the appellants in accordance with law within a period of four weeks from today, then the competent authority shall determine the amount of premium due and payable as on today and inform about the same to the appellants. The appellants on being informed about the amount of premium to be paid shall immediately deposit the requisite amount with the competent authority. On such amount of premium being deposited by the appellants, the competent authority shall thereafter proceed to consider the application of the appellants for putting the land for Non-Agricultural use."

32. In the present case, the powers have been exercised almost Page 39 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023 C/SCA/28409/2007 CAV JUDGMENT DATED: 15/06/2023 close to 14 years which, would be beyond reasonable period, illegal and bad. Therefore, the order of the Collector on this count as well, deserves to be quashed and set aside and is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to costs.

(SANGEETA K. VISHEN,J) RAVI PATEL/BINOY B PILLAI Further order After the judgment was pronounced, Mr Meet Thakkar, learned Assistant Government Pleader for the respondent, requested for staying the judgment for a period of four weeks', which request, has been opposed by Mr Shamik Bhatt, learned advocate for the petitioner on the ground that during the pendency of the proceedings since the year 2007, no stay was granted. Also, the order passed by the Collector, was after a span of almost 14 years and therefore, the request for stay of the order, may not be considered.

Request of learned Assistant Government Pleader for stay of the judgment, is acceded to. Operation and implementation of the judgment, is stayed for a period of four weeks' from today.

(SANGEETA K. VISHEN,J) BINOY B PILLAI Page 40 of 40 Downloaded on : Fri Jun 16 20:43:44 IST 2023