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1994 DIGILAW 372 (GUJ)

PATEL CHHOTABHAI MADHAVBHAI v. STATE

1994-12-05

SHARAD D.DAVE

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DAVE, J. ( 1 ) IN this group of 14 petitions which demonstrate common questions of law and facts, not much but every thing would depend upon the say of the supreme Court in State of Gujarat v. Patel Raghav Natha, (1969) X GLR 992. ( 2 ) THE question which was presented before the Supreme Court for consideration and decision was in respect of the time lag, during which the powers under Sec. 211 of the Bombay Land Revenue Code, 1879 could be exercised. The pronouncement takes into consideration the date of granting of the orders for the non-agricultural use, namely July 02, 1960, along with the date of the setting aside of the orders of the Collector, namely, 12th October, 1961. The pronouncement also takes into consideration the fact that, there is no period of limitation prescribed under Sec. 211 of the Code. After pointing out this Statutory position, the pronouncement goes further to say that this power must be exercised within a reasonable time and the length of the reasonable time must be determined by the facts of the case and nature of the order which is being revised. Any how the Apex Court also further says that Sec. 65 of the Code indicates the length of the reasonable time within which the revisional powers under Sec. 211 of the Code could be exercised. Ultimately, the pronouncement rendered by the Apex Court rules that, reading secs. 211 and 65 of the Code, it seems very clear that these powers must be exercised within a few months of the passing of the orders sought to be revised. I would prefer to under-line the words exercise because as it would become evident, a little bit later, the learned Government Counsel Ms. Mandavia would like to urge that, even the initiation of the action under Sec. 211 of the Code or some preparatory work being done by the State Government, there before, would also be able to save the situation and the principles laid down by the Supreme court in case of Raghav Natha (supra) would not be attracted. ( 3 ) THE broad facts which would form the background for all these petitions are not in dispute. ( 3 ) THE broad facts which would form the background for all these petitions are not in dispute. It appears that on December 22, 1977 the State Government had adopted a Resolution for introducing a suitable package of incentive, for the encouragement of the industries in the State after having undertaken a detailed study of various aspects, including the scope and the nature of the incentives. The basic idea of the State Government in adopting this Resolution was to formulate a policy for achieving the wider object of the development of small, medium and large scale industries in the rural areas of the State. This could have been done by affording an opportunity to the industries to grow. This could further only be done after giving certain incentive. The Resolution dated December 22, 1977 shows annexure-I and carves out certain areas to which the incentives package formula would be applicable. Zone-I, Zone-II and Zone-III has been provided in the schedule. District of Vadodara with five Talukas thereunder, including the Taluka of Waghodia has also been shown under Zone-III. By a later Notification it was thought fit to establish the growth centres. Without going into much details in this respect, it must be said that Waghodia falling under the Vadodara District was also accepted as one of such growth centres. ( 4 ) THE Government was aware that for the purpose of establishing industries as envisaged under the new policy, the prime requirement would be to make available the suitable lands within the areas, which were included in the zone and to which certain advantages and incentives were to be given. According to the formula, as waghodia Taluka was declared as the growth centre, falling under Grade-C if the industries were to be set up in this growth centre, a cash subsidy at the rate of 15% of the fixed asset or Rs. 25,00,000. 00 whichever would be less would be available to the industries under different modes under the scheme. It is not in dispute that the lands concerning these petitions would fall within the Waghodia Takuka of the vadodara District to which all these incentives would be available. 25,00,000. 00 whichever would be less would be available to the industries under different modes under the scheme. It is not in dispute that the lands concerning these petitions would fall within the Waghodia Takuka of the vadodara District to which all these incentives would be available. By a Resolution dated March 31, 1981, the Government had also decided that those lands which would be situated within the limits of 24 kilometres from the Municipal limits of ahmedabad and Vadodara but were out side the limits of Urban Development Area would also get the benefit of the scheme as already referred to above. ( 5 ) LOOKING to this incentives, it appears that a number of land occupants in villages under the Waghodia taluka had submitted necessary application for obtaining n. A. permission under Sec. 65 of the Code. It shall have to be emphasised that these applications were submitted by the original occupants or the landlords and not by the purchasers or some profit hunters popularly known as "middle men" with a view to earn from the policy of the Government. This aspect requires a special mention because as it would be evident from the orders of revision a view possibly had impressed the authority, that all these permissions might have been acquired by the transferees or the vendees or some "middlemen". ( 6 ) THE following Table would show the number of petitions, name of the respective petitioner, survey number and the name of the village, and the date of the grant of the N. A. permission. It would also show the date on whcih the respective sale deeds came to be executed by the original owner after obtaining the necessary permission of non-agricultural use under Sec. 65 of the Code. The Table would also indicate the date of the notice under which the powers under Sec. 211 of the Code were sought to be exercised. The last column of the Table would show the date of the orders which are impugned in the present proceedings. ( 21 ) THREE conclusions, therefore, would follow; firstly the revisional authority was not justified in taking up the exercise of revision after such a pretty long time as evidenced by the Table above referred, in view of the Supreme Court pronouncement in case of Raghav Natha (supra ). ( 21 ) THREE conclusions, therefore, would follow; firstly the revisional authority was not justified in taking up the exercise of revision after such a pretty long time as evidenced by the Table above referred, in view of the Supreme Court pronouncement in case of Raghav Natha (supra ). Secondly and alternatively even if it is to be accepted that the revisional authority could do so after such a pretty long time, then also, the orders granting the N. A. use permission can never be said to be orders in nullity or void ab-initio. Going a step further, I shall have to say that, a close scrutiny of the reasons assigned by the revisional authority demonstrates that these orders even cannot be said to be illegal, invalid of unlawful orders. Thirdly, and lastly, the notices under Sec. 84c of the Bombay Tenancy Act, 1948 shall have to be quashed. ( 22 ) THEREFORE, the impugned orders/notices shall have to be quashed and set aside by allowing the present petitions. This group of petitions, therefore, shall stand allowed. The impugned order/notices are hereby quashed and set aside. Rule is made absolute accordingly. ( 23 ). The learned Government Counsel Ms. Mandavia at this juncture points out a Bench decision of this Court in Special Civil Application No. 2000 of 1971, decided on 21/22-11-1974 and urges that, there could not be any estoppel against the Statute and that, though the proceedings are initiated after a pretty long time, it cannot be said that the authorities are estopped from exercising the powers. This decision has no application in the facts of the present case, because therein certain transactions were entered into by the petitioner which were clearly against the provisions of the Saurashtra Ghar Khed Tenancy Settlement and Agricultural Lands ordinance, 1949, Secs. 54 and 75 of the Ordinance had provided for the restrictions of the transfer of agricultural lands in certain cases and summary eviction of the persons unauthorisedly occupying or wrongly possessing of any such land. Here, once again the question was in respect of a transaction which was violative of a special enactment brought by way of an Ordinance with a view to prevent the transfer of certain agricultural lands in favour of non-agriculturist. The action might be regarded as non-est or void ab-initio. Here, once again the question was in respect of a transaction which was violative of a special enactment brought by way of an Ordinance with a view to prevent the transfer of certain agricultural lands in favour of non-agriculturist. The action might be regarded as non-est or void ab-initio. In such a case, definitely as held by me, the principles under the principle laid down by Supreme Court in case of Raghav Natha (supra) might not be attracted. This decision, therefore, hardly renders any assistance to learned Government Counsel Ms. Mandavia. The conclusion, therefore, remains unchanged. .