Asoj Soft Caps Private Limited v. STATE — 1993 DIGILAW 422 (GUJ)

R. K. ABICHANDANI, J. ( 1 ) THE petitioner seeks to challenge the order dated 02-07-1983 passed by. the Government in exercise of its revisional power u/s 211 of the Bombay land Revenue Code, 1879 (hereinafter referred to as the "code") by which the order dated 12-09-1980 made by the Taluka Development Officer, Vaghodia granting the permission for N. A. use in respect of 02 Acres-19 Gs. of land Survey No. 517/2 and order dated 22-07-1981 sanctioning the plans were set-aside. ( 2 ) IT appears that the Ranchhodbhai Patel the original owner of the land had made an application on 11-06-80 for obtaining permission for N. A. use for the purpose of erecting a pharmaceutical factory for manufacture of soft capsules. The respondent no. 2 Taluka development Officer by his order dated 12-09-1980 granted permission for the purpose in the said land. ( 3 ) IT appears that thereafter the original owner Ranchhodbhai Patel by a registered sale Deed dated 03-10-80 sold the said land to M/s. Aristo Laboratories-partnership firm. Thereafter, on 7-5-1981 the said Aristo Laboratories applied to the respondent for modification of plans for the proposed Soft Capsules Project The respondent no. 2 by his order dated 12-07-1983 approved the revised plans in respect of the said land. Thereafter an agreement was entered into between the firm and the petitioner no. 1 Private Limited company for taking over of Aristo Laboratories by the Company. On 26-5-1982 the petitioner Company purchased under a registered sale the said land bearing survey No. 517/2 and other properties from the said firm. It is the case of the petitioner that the plant was erected in the said land for manufacture of soft capsules and they had spent an amount of about Rs. 80 lacs on the said project as on 26-11-1983 as certified by the chartered Accountant as per Annexure-D. It is also the case of the petitioner that they recruited technical and other employees by issuing advertisement and the production of soft capsules was likely to commence shortly and life saving drugs like Ampicilin, tetracyclin and Rephamicinate were to be manufactured by the said plant which was of its first kind in Gujarat. ( 4 ) THE Secretary (Appeals) Revenue Department in exercise of revisional jurisdiction u/s 211 of the Code issued a show cause notice dated 28-4-1983 to the firm of M/s. Aristo laboratories calling upon them to show cause as to why the order dated 22-07-1981 made by the respondent no. 2 Taluka Development Officer, Vaghodia, sanctioning the revised plans should not be cancelled. It was indicated in the show cause notice that the order dated 22-07-1981 sanctioning the revised plans was illegal for the grounds mentioned therein. M/s. Aristo Laboratories sent their reply to that notice on 21-05-1983 in which it was pointed out that the necessary permissions were taken from the Local Authority, executive Engineer, Joint Commissioner of Industries etc. in respect of the said project and even the Gujarat Water Polution Control Board had issued necessary certificate on 12-08-1982. It was submitted that all the conditions of the revised plan which was sanctioned on 22-07-1981 were duly fulfilled and assessment was being paid. It was contended that taking up the question under revisional power after a span of three years was not warranted. In para 16 of that reply it was pointed out that the petitioner no. 1 company was constituted under the necessary documents and it had taken over the said project. The Revisional Authority found that the respondent no. 2 Officer had not obtained opinion of the concerned authority of the Industries Department and had also not obtained opinion of the Executive Engineer and had not followed the instructions of the government He held that the Taluka Development Officer had misused his power and the proceedings were therefore a nullity and there was no question of any limitation arising against the exercise of revisional powers. He found that the necessary record was called for within three months and the show cause notice was issued as a part of the said process of calling for the record and that no question of delay could therefore arise. The revisional Authority found that the Taluka Development Officer had not applied his mind while sanctioning the revised plan. He found that the necessary record was called for within three months and the show cause notice was issued as a part of the said process of calling for the record and that no question of delay could therefore arise. The revisional Authority found that the Taluka Development Officer had not applied his mind while sanctioning the revised plan. The Revisional Authority not only set-aside the order sanctioning the revised plan which was given on 22-07-1981 and in respect of which the show cause notice was given, but also under the same order set-aside the permission for n. A. use which was earlier granted on 12-09-1980 in respect of the said land. ( 5 ) MR. Raju the learned Counsel appearing for the petitioners contended that though there was no period of limitation prescribed for exercise of the revisional powers u/s 211 of the Code, the powers had to be exercised within a reasonable time. He submitted that the exercise of revisional powers, after a lapse of about three years from the date on which n. A. use permission was given and about two years after the revised plans were sanctioned was not warranted in view of the settled legal position that the power should be exercised in reasonable time. He further argued that the show cause notice was given only against the order sanctioning the revised plan which was made on 22-07-81 and there was no show-cause notice in respect of the earlier order dated 12-09-1980 by which the permission for N. A. use was granted in favour of the original owner. He, therefore, submitted that the Revisional Authority could not have set aside the earlier order dated 12-09-1980 for which no show cause notice was issued. He also submitted that no notice was given to the petitioner Company though it was brought to the notice of the Revisional authority that the petitioner Company which is an independent legal entity had taken over the said project and was the owner of the land. He submitted that even at the time when the reply to the show cause notice was given on 21- 5-1982 an amount of Rs. 22 lacs was spent on the construction of the building and thereafter as stated in the Certificate issued by the Chartered Accountant an amount of about Rs. He submitted that even at the time when the reply to the show cause notice was given on 21- 5-1982 an amount of Rs. 22 lacs was spent on the construction of the building and thereafter as stated in the Certificate issued by the Chartered Accountant an amount of about Rs. 80 lacs has been spent in connection with the said project The revisional power cannot therefore be exercised after a lapse of such a long period during which the parties have invested a huge amount on the basis of permission of N. A. use which was granted and the plans which were sanctioned by the concerned authorities. ( 6 ) THOUGH no period of limitation is prescribed for exercise of the revisional jurisdiction u/s 211 of the Code, it has been settled by the Apex Court in its decision in state of Gujarat vs. Patel Raghav Natha and Ors. , reported in X G. L. R. 1969 Page 992, that these revisional powers were to be exercised in a reasonable time and the length of reasonable time must be determined by the facts of the case and the nature of the order which is to be revised. It was noticed that u/s 65 of the Code, if the Collector does not inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted. Therefore, revisional powers must be exercised within a few months of the order of the Collector. In the instant case, permission for putting the land to N. A. use was granted in favour of the original owner u/s 65 of the Code by the concerned authority on 12-09-1980. It appears that though the ownership of the land changed twice thereafter, the project/ for manufacturing soft capsules plant was undertaken and buildings were constructed for the purpose. Ultimately, the petitioner Company was constituted to take over the project and is the owner of the disputed land. In the reply to the show cause notice which was sent as far back as on 21-5-82 it was pointed out that a sum of Rs. 22 lacs was spent for constructing the building. The petitioners now state that the Certificate issued by the chartered Accountant reveals that an amount of Rs. 66,01,855. 00 was spent upto 2-9-1983 and a total amount of Rs. 79,93,061. 22 lacs was spent for constructing the building. The petitioners now state that the Certificate issued by the chartered Accountant reveals that an amount of Rs. 66,01,855. 00 was spent upto 2-9-1983 and a total amount of Rs. 79,93,061. 00 was spent upto 22-10-1983. It is pointed out that the soft capsules project was the first of its kind in Gujarat. It is obvious that when permission was sought for putting the land to N. A. use for the purpose of erecting a plant for manufacture of medicines, investment of a considerable amount of money as involved. An industrial project for setting up such factory would be a planned matter and the parties proposing to pursue the project would ordinarily be keen to acomplish the project at the earliest after obtaining the necessary permission for putting the land into n. A. use. The occupant would be spending money in raising construction and installing machinery and for the know-how of the project as also by employing necessary hands for the purpose. Under such circumstances, exercise of revisional power u/s 211 of the Code for setting aside permission for N. A. use granted u/s 65 of the Code after a lapse of about two years would be nothing but capricious and unwarranted. ( 7 ) THE Revisional Authority had called for the record of the order sanctioning the revised plans as is clear from the show-cause notice dated 22-04-1983 as also the impugned order and not of the order dated 12-09-1980 granting permission for N. A. use. Even the Deputy Collector who was representing the Department before the Revisional authority had submitted that the relevant papers in respect of the order dated 12-09-1980 granting permission for N. A. use were not in the file. No show cause notice was over issued in respect of the original order dated 12-09-1980 granting permission for N. A. use to the original owner. The Revisional Authority while dealing with the question of delay has resorted to the reasoning that it had called for record within three months of the order dated 22-07-1981, and, the show cause notice, was issued by it on 22-04-1983 as a continuation of that process and therefore there was no question of delay in exercising the powers. The Revisional Authority while dealing with the question of delay has resorted to the reasoning that it had called for record within three months of the order dated 22-07-1981, and, the show cause notice, was issued by it on 22-04-1983 as a continuation of that process and therefore there was no question of delay in exercising the powers. Merely because the Revisional Authority calls for the record from the subordinate authority with a view to examine whether it should exercise its revisional power, it cannot be said that the action taken much after the record is called for, should be treated as expeditiously taken. The show cause notice itself came to be issued nearly one year and seven months after the order of the respondent no. 2 sanctioning the revised plan. In this context, calling for the record at an earlier date for the purpose of examining whether the revisional power should be exercised or not would not be a relevant factor and the question of delay cannot be decided on the basis of the date on which the record is called for by the Revisional Authority u/s 211 of the Code. The material date for considering the question of delay in exercise of the revisional power u/s 211 of the Code would be the date on which the revisional power is exercised and not the date on which the revisional authority calls for the record from the subordinate authority. The facts and circumstances of the case, clearly show that the revisional power has not been exercised within a reasonable time. ( 8 ) THE facts of the case on record disclose that a huge investment has been made in respect of the Soft Capsules Project after obtaining the permission for N. A. use. The respondent no. 2 had granted permission u/s 65 of the Code and sanctioned the revised plan later on which he was empowered to do, and since the revisional authority did not exercise revisional power within a reasonable time it is estopped from doing so in view of the fact that guided by the permission granted and the plans sanctioned, the industrial project was undertaken by the concerened parties. It the concerned authority while granting permission for putting the land to N. A. use or sanctioning the plan had not followed some guide lines of the Government of prior consultation of the Executive engineer or the Industries Officer and has been negligent in exercise of his powers, that by itself will not make its order ultra-vires his powers. The Revisional Authority has not questioned the existence of powers of the respondent no. 2 on mere fact that the respondent no. 2 had not applied his mind the Revisional Authority has come to the conclusion that the order granting the permission for N. A. use and the order sanctioning the revised plan were nullity. There was no inherent lack of jurisdiction in the officer and merely because the Revisional Authority is of the opinion that the subordinate authority did not proparly applied his mind it could not be said that the orders made by the subordinate authority were a nullity. The Revisional Authority has therefore completely misdirected itself when it has described the order as a nullity without questioning the power of that authority to make the order or without finding it to be in contravention of any specific provision of law. It appears that the order is described as a nullity only with a view to put up a justification for the gross delay in exercise of the revisional powers by it. If the Revisional Authority finds any negligence on the part of the lower authority or dereliction of duty then for the fault of such subordinate authority it would not be justified in punishing the citizen who has on the strength of the permission granted for putting the land to N. A. use and the plans sanctioned for the purpose, invested huge amounts of money and labour for bringing up the project. Therefore, the Revisional Authority by virtue of such gross delay was clearly estopped from exercising its revisional powers u/s 211 of the Code. ( 9 ) THE fact that the project had changed the hands after N. A. use permission was granted to the original owner was of no consequence because u/s 73 of the Code it is envisaged that the occupancy shall, subject to the provisions contained in section 53, and to any conditions lawfully annexed to the tenure and as otherwise prescribed by law, be deemed an heritable and transferable property. Therefore, once N. A. use permission was granted and there was nothing which prevented the occupant from transferring the property, the fact that the project proposed, came to be executed by the subsequent purchaser of the land would not in any way affect the permission granted which was attached to the land, so long as the conditions for grant of such permission were observed. Therefore, the Revisional Authority need not have drawn any adverse inference by finding that the construction was made and the work was carried out in the name of the petitioner Company when it was brought to the notice of the Revisional Authority that the land in respect of the permission for N. A. use was granted had changed hands under registered Sale Deeds and the firm which had applied for sanction of the revised plans which were sanctioned was taken over by the newly constituted private Limited company. Transfer of land by itself after permission for N. A. use was granted would not invalidate the permission granted particularly in view of provision of Sec. 73 of the Code which clearly lays down that occupancy shall be deemed to be transferable and heritable property subject to lawfully annaxed conditions and paramount charge of the government in respect of land revenue. ( 10 ) FOR the above reasons, the impugned revisional order cannot be sustained and is hereby set-aside. The rule is made absolute with no order as to costs. .