Heirs of deceased Muman Jivanbhai Jethrabhai v. Muman Sarifbhai Jivabhai
1994-09-20
J.N.BHATT
body1994
DigiLaw.ai
J. N. BHATT, J. ( 1 ) THE sole question which is in focus is as to whether the order passed by the revisional authority-Additional special Secretary (Appeals) allowing the revision and quashing the order of the collector passed on 15-6-1979, is legal and valid or not. Thus, the petitioners have questioned the impugned order by invoking aids of provisions of Article 227 of the Constitution of India. ( 2 ) SOME relevant and material facts leading to rise of this petition may shortly be narrated at the outset. The petitioners ancestor occupied one agricultural land bearing S. No. 444 admeasuring 5 acres - 33 gunthas in village Samoda, taluka Sidhpur in mehsana district. By virtue of the order of the Government passed on 1-7-1979, the said occupancy in respect of the aforesaid land was regularised. ( 3 ) THE ancestor of the petitioners one muman Jivanbhai Jethrabhai applied for exchange of land to the competent authority. He was Sarpanch of Samoda taluka gram panchayat. For such transfer, the said gram panchayat passed resolution No. 94 on 31-3-1979. The resolution was passed unanimously in the meeting wherein deceased Muman jivanbhai was the sarpanch. ( 4 ) THE gram panchayat, by the aforesaid resolution, recommending exchange of the aforesaid land of the petitioners ancestor for that of S. No. 1. The said resolution was placed before the collector at Mehsana. Thus, the aforesaid land of the petitioners was sought to be exchanged against gauchar land bearing s. No. 1 in the same village. The petitioners ancestor had demanded gaucher land bearing No. 1. However, the panchayat by passing resolution No. 94 consented to give 2 acres - 33 gunthas to the petitioners ancestor by way of exchange instead of entire piece of land of gaucher land bearing S. No. 1. ( 5 ) THE Collector at Mohsana passed an order on 16-6-1979 after considering resolution of the Samoda Gram panchayat and the report of the mamlatdar that agricultural land bearing s. No. 444 admeasuring 2 acres - 33 gunthas of the petitioners ancestor should be taken and the same area, viz. 2 acres - 33 gunthas out of S. No. 1 should be given to the petitioners ancestor by way of exchange. In short, by exercising powers under Section 98 (1) of the gujarat Panchayats Act, 1961 (the panchayats Act for short), exchange of land was approved by the Collector.
2 acres - 33 gunthas out of S. No. 1 should be given to the petitioners ancestor by way of exchange. In short, by exercising powers under Section 98 (1) of the gujarat Panchayats Act, 1961 (the panchayats Act for short), exchange of land was approved by the Collector. The ancestor of the petitioners was granted the said land by way of exchange on five conditions which are elaborately mentioned in the order of the Collector. ( 6 ) LATER on, a revision petition was filed by one Secretary of the Samoda milk Producing Co-operative, Society against the said order of the Collector. After hearing the parties and after considering the facts and circumstances, the revision application was allowed on 22-6-1981 by the Additional Special secretary (Appeals),. Revenue department, State of Gujarat and the order of the Collector at Mehsaha was quashed. Therefore, the petitioners who are heirs of the deceased Muman jivanbhai have come up before this Court challenging its legality and validity by filing this petition under Article 227 of the Constitution. ( 7 ) THE learned Advocate for the petitioners firstly contended that hearing of the revision by the Additional Special secretary (Appeals) was not competent and, therefore, the order is without jurisdiction. This contention is seriously opposed by the learned Assistant government Pleader Mr. Desai. The impugned order passed by the Collector is under Section 98 of the Panchayats act. Provision for revision is made in section 305 in the Panchayats Act. This section authorises the State Government to hear revisions. Section 305 of the panchayats Act reads under :"the State Government may call for and examine the record of proceeding of any panchayat or of any committee thereof or of any officer (except any proceedings of the Nyaya Panchayat or of the District or of the Sessions Court in judicial proceedings in revision or reference from the proceedings of a nyaya Panchayat) for the purpose of satisfying itself as to the legality or propriety of any order passed and may revise or modify the order as it shall deem just. "however, it is contended on behalf of the petitioners that the revision is not heard by the competent authority. Pursuant to the powers under Section 305 of the Panchayats Act, the Government of gujarat has issued an order dated 20-9- 1978 a copy of which is placed on record.
"however, it is contended on behalf of the petitioners that the revision is not heard by the competent authority. Pursuant to the powers under Section 305 of the Panchayats Act, the Government of gujarat has issued an order dated 20-9- 1978 a copy of which is placed on record. As per this order, the Additional special Secretary (Appeals), Rural, housing and Development Department, is authorised to hear the revisions under section 305 arising out of orders passed under Section 98 of the Panchayats Act. At the relevant time, one G. R. Rao, additional Special Secretary who had decided the revision was authorised to hear revisions by virtue of this said order. ( 8 ) AN order of the Government dated 20-9-1978 is also placed on record. Both the aforesaid orders issued by the government exercising powers under rule 5 of the Rules of Business authorised, at the relevant time, one G. R. Rao, Deputy Special Secretary (Appeals) to hear revisions under Section 305. The same person has decided the revision in the present case. Therefore, the contention that he was incompetent to hear the revision under Section 305 is not sustainable. Therefore, it is rejected. ( 9 ) THE second contention raised on behalf of the petitioners is that the revision was entertained after a long delay. Therefore, there was unreasonableness on the part, of the revisional authority to hear the revision. It is also contended that the revision, as such, was filed one and half years back and the revision was heard after two years. No doubt, it is true that revision under Section 305 for which no period of limitation is prescribed has to be entertained within reasonable time. What is reasonable time depends upon the facts and circumstances of each case. In this connection, reliance is placed on a decision of the Supreme Court rendered in State of Gujarat v. Ragliav Natha patel, reported in 1969 GLR p. 992. Having examined the ratio of the said decision of the Supreme Court, it becomes clear that as no period of limitation is prescribed under Section 211 of the Bombay Land Revenue Code, it was held that the said revisional power should be exercised in reasonable time and the length of reasonable time must be determined by the facts of the ease and the nature of the order.
In that case, a question had arisen whether the commissioner could revise the order made under Section 65 of the Bombay land Revenue Code. Considering the special provisions under Section 55, it was observed that under Section 65, if the collector does not inform the applicant of his decision on the application within a period of three months, permission applied for shall be deemed to have been granted. This section shows that period of three months is considered sufficient for the Collector to make up his mind and beyond that, the Legislature thinks that the matters is so urgent that permission shall be deemed to have been granted. Therefore, considering the conjoint reading of Sections 211 and 65 of the said Code the Supreme Court reached the conclusion that the Commissioner must exercise his revisional powers within a few months of the order of the collector. So is not the fact scenario in the present case. On the contrary, there are special circumstances which are considered by the revisional authority while exercising powers under Section 305. ( 10 ) THE application for exchange of land was by the Sarpanch of the gram panchayat who was a party in the meeting which passed resolution No. 94 recommending exchange of the land. The sarpanch of the gram panchayat is holding a very responsible post. He had applied for exchange of land and he participated in the meeting which passed the aforesaid resolution unanimously recommending exchange of land. Therefore, it is contended that a responsible officer like the Sarpanch had misused and abused his petition. Apart from this, it is also observed in the impugned order passed in the revision that earlier application for grant of land made by respondent No. 1 was rejected; whereas the application for exchange of land when made by the Sarpanch was approved. Undoubtedly, the Sarpanch under the provision of Section 322 of the panchayats Act, is a public servant holding a responsible post. It will be interesting to refer to Section 322 of the Panchayats act. Every member of the panchayat or its committee shall be deemed to be a public servant within the meaning of section 21 of the I. P. Code as provided in Section 322 of the Panchayats Act.
It will be interesting to refer to Section 322 of the Panchayats act. Every member of the panchayat or its committee shall be deemed to be a public servant within the meaning of section 21 of the I. P. Code as provided in Section 322 of the Panchayats Act. ( 11 ) THUS, the aforesaid special circumstances are considered by the revisional authority while entertaining the revision which was filed after one and half years. The fact that respondent No. 1 was also a member of the gram panchayat and he was also a party in passing resolution No. 95 of the panchayat who had filed the revision, does not in any way help the present petitioners. Therefore, the contention that , the revision petition was filed and entertained after unreasonable length of time cannot be upheld in view of the special circumstances narrated in the impugned order and elaborately discussed hereinbefore. ( 12 ) IT was also contended that the petitioners have spent huge amount for the purpose of construction of well and putting electric motor. As such, no documentary evidence was placed before the authorities below. However, a contention was raised before the revisional authority and the revisional authority has dealt with all these aspects elaborately. This is finding of fact and this Court cannot reappraise or re- examine the finding of fact while exercising jurisdiction under Article 227 of the Constitution of India wherein the scope is very much circumscribed. An attempt was made to get documentary evidence produced in this petition by way of additional evidence, contending that such documents show the expenditure incurred by the petitioners. Apart from permissibility or legality, in the peculiar facts of this case, this Court is not inclined to entertain the request for production of additional evidence in this petition. ( 13 ) IN the written arguments submitted on behalf of the petitioner many authorities are cited and reliance is placed on them. Having examined and gone through the said authorities, they are not applicable to the facts of the present case and again, considering the limited scope of Article 227 of the Constitution of india, it would not be expedient also to discuss all the authorities individually. ( 14 ) LEARNED Advocate Mr. Pandya for the petitioners also raised a plea of promissory estoppel.
( 14 ) LEARNED Advocate Mr. Pandya for the petitioners also raised a plea of promissory estoppel. In the facts of the present case, this Court has not been able to accept the said plea. No question of promissory estoppel would arise in a case when the Sarpanch of a local gram panchayat who is personality interested participates in a meeting which passes a resolution recommending exchange of land. It will be interesting to note that the impugned revisional order clearly states that the land which was given to the sarpanch is very much valuable compared to the land which he has given back in exchange. The finding of fact is examined by the revisional authority. The order of the Collector is quashed granting exchange of land on various grounds. Some other submissions are also made which were also made before the revisional authority. So, the other factual contentions which are reiterated need not be elaborately dealt with again. ( 15 ) LEARNED Advocate for the petitioners has emphasised para 15 of the decision of the Supreme Court in B. K. Srinivasan v. State of Karnataka, reported in AIR 1987, S. C. 1057. After having examined the said para, this Court finds that the observations made in the said para will not be applicable to the facts of our case, as in this case, there is a provision in Section 321 of the panchayats Act which provides for delegation of powers. Section 305 makes a provision for hearing revisions. By virtue of the aforesaid two Government orders, the Additional Special Secretary (Appeals) is authorised to hear revisions and who has, as such, heard the revision. ( 16 ) HAVING regard to the facts and circumstances narrated hereinabove and considering the limited scope of powers of this Court under Article 227 of the constitution of India, this Court has no hesitation in finding that this petition is totally meritless. The impugned order has remained totally unassailable. ( 17 ) IN the result, this petition under article 227 is dismissed with cost which is quantified at Rs. 500/ -. Interim relief stands vacated. Rule is discharged. At this stage, learned Advocate Mr. Pandya for the petitioners submits that interim relief may be extended for a period of twelve weeks. Learned Asstt. Government pleader Mr. Desai objects to the grant of twelve weeks time.
500/ -. Interim relief stands vacated. Rule is discharged. At this stage, learned Advocate Mr. Pandya for the petitioners submits that interim relief may be extended for a period of twelve weeks. Learned Asstt. Government pleader Mr. Desai objects to the grant of twelve weeks time. He submits that it should not be more than six weeks. Having regard to the facts and circumstances, interim relief shall remain operative for a period of eight weeks as the petitioners want to challenge the order of this Court in higher forum. .