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2008 DIGILAW 264 (GUJ)

Vaghri Jivandas Manji v. State of Gujarat

2008-06-18

ABHILASHA KUMARI

body2008
Judgment Abhilasha Kumari, J.—Rule. Mr. J.K. Shah, learned Assistant Government Pleader, waives service of notice of rule on behalf of the respondents. In the facts and circumstances of the case, and with the consent of the learned Counsel for the parties, the petition is being heard and finally disposed of today. 1.1. By filing this petition, under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the order dated 10th January, 2008 [18th January, 2008], rendered by the Respondent No. 1, whereby the order dated 11th September, 2006 of the Respondent No. 3 i.e. the Mamlatdar, Radhanpur, granting Non-Agricultural use permission in favour of the petitioners, has been set aside. 2. The brief facts of the case, as emerging from a perusal of the averments made in the petition are that, the petitioners are the heirs and legal representatives of late Shri Manji Kachra Vaghri, who was a tenant upon the land bearing Survey No. 378/1 and 378/2, admeasuring about 16 Acres and 15 Gunthas and 3 Acres and 35 Gunthas respectively, situated at Taluka Radhanpur, District Patan. 2.1. It transpires from the averments made in the petition that originally one Shri Shah Ibrahim was the owner of the land bearing Survey Nos. 378/1, 378/2 and subsequently the name of Shri Manji Kachra Vaghri, predecessor-in-title of the petitioners, came to be entered into village Form No. 6 under Entry No. 514 in the year 1956-57, being the tenant and in actual possession of the said land. Having been held as a tenant upon the land in question, the sale price was determined and the land was sold to the predecessor-in-title of the petitioners as per the provisions of Sections 32-G and 32-M of the Bombay Tenancy and Agricultural Lands Act, 1948 [the “Tenancy Act” for short], read with the provisions of Section 43 of the Tenancy Act, for a sale price of Rs. 700/-, subject to certain restrictions on the transfer of land. The necessary certificate in favour of the predecessor-in-title of the petitioners was issued by the concerned Mamlatdar and Entry No. 833 was made in Village Form No. 6 on 26th October, 1964, which was certified on 13th December, 1964. Upon the demise of Shri Manji Kachra Vaghri on 26th January, 1993, the land in question devolved upon the petitioners and their names were entered in the revenue records under Entry No. 3571. Upon the demise of Shri Manji Kachra Vaghri on 26th January, 1993, the land in question devolved upon the petitioners and their names were entered in the revenue records under Entry No. 3571. It is averred in the petition that since there was an error in the measurement of the land mentioned in the village Form No. 7/12 for Survey No. 278/A/2, and instead of the correct measurement of 5 Acres and 20 Gunthas i.e. 22,258 sq.mtrs. the measurement was wrongly mentioned as 2 Acres and 8 Gunthas, the petitioners moved an application to the Mamlatdar, Radhanpur, for rectification of the error in the relevant record. After following the due procedure and conducting a detailed examination, it is averred that the Mamlatdar, Radhanpur passed order dated 30th September, 1993 rectifying the mistake recording the measurement of the land in question as mentioned in the village Form No. 7/12. According to the petitioners, the Mamlatdar had considered the report of Circle Officer, the Panchnama, the fact of actual possession of the petitioners and other necessary factors before ordering the revised Entry No. 3629 to be made in the revenue records. This Entry was made on 5th October, 1993, whereby the measurement of the land in question has been corrected to be 5 Acres and 20 Gunthas and the relevant documents annexed as Annexure-”C” to the petition. 2.2. It further transpires from the statements made in the petition that thereafter, an application seeking permission to remove the restrictions of new and impartible tenure under the provisions of Section 43 of the Tenancy Act, in respect of the land admeasuring 16,000 sq.mtrs. of Survey No. 378/A/2 was moved before the Respondent No. 2, who granted the said permission and determined the amount of premium payable as Rs. 33,60,000/-, vide order dated 29th April, 2006. This amount was deposited by the petitioners on 10th May, 2006. On payment of the amount of premium, the Collector, Patan passed order dated 17th May, 2006 granting Non-Agricultural use permission [“N.A. permission” for short] for residential purposes in respect of the land admeasuring 16,000 sq. mtrs. It is further stated in the petition that another application was moved by the petitioners for the removal of the restrictions of new and impartible tenure under the provisions of Section 43 of the Tenancy Act, in respect of land admeasuring 6,258 sq.mtrs. mtrs. It is further stated in the petition that another application was moved by the petitioners for the removal of the restrictions of new and impartible tenure under the provisions of Section 43 of the Tenancy Act, in respect of land admeasuring 6,258 sq.mtrs. This application was also allowed by the Respondent No. 2 vide order dated 18th May, 2006 and the amount of premium was determined as Rs. 16,64,000/-. The petitioners deposited the said amount on 19th May, 2006 and thereafter, vide order dated 20th May, 2006, restrictions under the provisions of Section 43 of the Tenancy Act were removed for using the land for commercial purposes. It is averred that, after the restrictions under Section 43 of the Tenancy Act were removed in respect of the land admeasuring 16,000 sq.mtrs. for residential purposes and those upon land admeasuring 6,258 sq.mtr. for commercial purposes, the petitioners made an application before the Collector for obtaining N.A. permission regarding the land in question on 10th July, 2006, under the provisions of Section 65 of the Bombay Land Revenue Code [the –‘Code’ for short]. The Collector granted N.A. permission in respect of the land in question vide order dated 11th September, 2006, annexed as Annexure-M to the petition. However, the petitioners received a show cause notice dated 9th October, 2007, calling upon them to explain why the N.A. permission in respect of the land in question should not be cancelled. Pursuant thereto, by exercising power under Section 211 of the Code, the Respondent No. 1 passed order dated 10th January, 2008 [18th January, 2008] whereby N.A. permission dated 11th September, 2006 in favour of the petitioners has been cancelled, leading to the filing of the present petition. 2.3. An affidavit-in-reply has been filed on behalf of the Respondent No. 3 i.e. the Collector, Radhanpur wherein the impugned order dated 10th January, 2008 [18th January, 2008] is sought to be justified. 3. I have heard Mr. D.K. Puj, learned Counsel for the petitioners and Mr. J.K. Shah, learned Assistant Government Pleader for the respondents and have perused the averments made in the petition as well as the documents annexed thereto. 3.1. Mr. D.K. Puj, learned Counsel for the petitioners has submitted as under:— 3.2. 3. I have heard Mr. D.K. Puj, learned Counsel for the petitioners and Mr. J.K. Shah, learned Assistant Government Pleader for the respondents and have perused the averments made in the petition as well as the documents annexed thereto. 3.1. Mr. D.K. Puj, learned Counsel for the petitioners has submitted as under:— 3.2. That the N.A. permission in favour of the petitioners has been granted by the Collector, Radhanpur vide order dated 11th September, 2006 and the Respondent No. 1 has issued the show-cause Notice dated 9th October, 2007 after a delay of more than 13 months and thereafter the said permission has been cancelled by order dated 10th January, 2008 [18th January, 2008], which is after a period of about 15 months from the date of granting the same. According to the learned Counsel for the petitioners, the power of revision under the provisions of Section 211 of the Code have been exercised by the Respondent No. 1 after a period of more than one year, which cannot be said to be a reasonable period of time, as held by the Apex Court in the case of State of Gujarat vs. Patel Raghav Natha & Ors. reported in 1969 GLR pg.992 and in the case of Zabir Mohmad Hafezi Ismail Patel & Ors. vs. State of Gujarat & Ors. reported in 1997 GLR pg. 140. It is submitted by the learned Counsel for the petitioners that as per the decision of the Apex Court, the reasonable period of time for exercising powers under Section 211 of the Code would be about three months and as such, the show-cause Notice dated 9th October, 2007 could not have been issued after a lapse of about 13 months, after passing the order dated 11th September, 2006 and further the N.A. permission could not have been cancelled by passing order dated 10th January, 2008 [18th January, 2008] after a period of about 15 months. According to the learned Counsel for the petitioners, the impugned order dated 10th January, 2008 [18th January, 2008] deserves to be quashed and set aside, being contrary to the decisions of the Apex Court and this Court and, therefore, the petition may be allowed. 3.3. That the reasons contained in the impugned order for cancellation of the N.A. permission are untenable and factually incorrect. It is submitted by Mr. 3.3. That the reasons contained in the impugned order for cancellation of the N.A. permission are untenable and factually incorrect. It is submitted by Mr. D.K. Puj, that the Respondent No. 1 has stated in the impugned order that the opinions of the Executive Engineer, R & B, Chief Officer, Radhanpur, Executive Engineer, Gujarat Electricity Board, Radhanpur, District Health Officer, Radhanpur and Mamlatdar and ALT, Radhanpur, had not been received before the grant of N.A. permission, when in fact these authorities, except two, had submitted their opinions in favour of the petitioners before the order granting N.A. permission dated 11th September, 2006 was passed. As far as the opinions of the Executive Engineer, Narmada Yojana, Kutch Branch and the Executive Engineer, R & B [State], Patan are concerned, the same have been received on 7th November, 2006 and 23rd November, 2006, respectively as is evident from the documents annexed at pages 58 and 59 of the paper book. It is emphasized by the learned Counsel for the petitioners that these opinions are also favourable to the petitioners and, therefore, the reason stated by the Respondent No. 1 for cancellation of the N.A. permission to the effect that the opinions of the said authorities have not been received, is contrary to the record and on this ground as well, the impugned order deserves to be quashed and set aside. 3.4. The learned Counsel for the petitioners has submitted that the second reason for cancellation of N.A. permission as stated in the impugned order that the N.A. permission has been wrongly granted for an area of 5 Acres and 20 Gunthas and not for an area of 2 Acres and 8 Gunthas is also not correct, as is evident from the order of the Mamlatdar, Radhanpur dated 30th September, 1993. It is submitted that the Mamlatdar has, after following due procedure and after detailed examination of the record, come to the conclusion that the correct measurement of the land in question is 5 Acres and 20 Gunthas and the necessary correction has also been carried out in the relevant revenue records. It is submitted that the order dated 30th September, 1993 of the Mamlatdar, Radhanpur has not been challenged till date and has attained finality and, therefore, the Collector has rightly granted N.A. permission in respect of 5 Acres and 20 Gunthas of land. It is submitted that the order dated 30th September, 1993 of the Mamlatdar, Radhanpur has not been challenged till date and has attained finality and, therefore, the Collector has rightly granted N.A. permission in respect of 5 Acres and 20 Gunthas of land. It is urged by the learned Counsel for the petitioners that had the respondent authorities been aggrieved by order dated 30th September, 1993, they could have challenged it by way of filing appropriate proceedings which was not done. In view of the principle of law laid down in the case of Pune Municipal Corporation vs. State of Maharashtra & Ors., reported in (2007) 5 SCC pg. 211, no order passed by the competent authority can be ignored unless a finding is recorded that it is illegal, void or not in consonance with law and as the order dated 30th September, 1993 of the Mamlatdar has not been challenged, or set-aside, it cannot be ignored by the respondent authorities. It is further submitted that the power under the provisions of Section 211 of the Code cannot be exercised after an unreasonably long period of time on the ground that the order dated 30th September, 1993 is a void order, as stated by the Respondent No. 1 in the impugned order. The said order cannot be assumed to be void or illegal, without it having been set-aside by a competent forum and has to be given effect to by the respondents. 3.5. On the strength of the above submissions, Mr. D. K. Puj, learned Counsel for the petitioners, has prayed that the impugned order be quashed and set aside and the petition be allowed. 4. Mr. J.K. Shah, learned Assistant Government Pleader, has submitted that the order dated 10th January, 2008 [18th January, 2008] suffers from no legal infirmity. He has submitted that although N.A. permission was granted on 11th September, 2006, the construction upon the land in question, which should have been started within a period of six months and completed within a period of three years, was not started within the time stipulated and was begun only when a show-cause Notice was issued on 30th May, 2006. 4.1. The learned Assistant Government Pleader has submitted, that there is a discrepancy between the key plan of TP scheme and the map of Simtal and, therefore, N.A. permission should not have been granted by the Collector. 4.2. 4.1. The learned Assistant Government Pleader has submitted, that there is a discrepancy between the key plan of TP scheme and the map of Simtal and, therefore, N.A. permission should not have been granted by the Collector. 4.2. It is further submitted by Mr. J.K. Shah, that the order dated 30th September, 1993 passed by the Mamlatdar, Radhanpur is illegal and not in consonance with the revenue records, as the measurement of the land in question is not 5 Acres and 20 Gunthas, as recorded in the order dated 30th September, 1993 but is 2 Acres and 8 Gunthas only and, therefore, the Respondent No. 1 has rightly cancelled the N.A. permission in favour of the petitioners by passing the impugned order. 4.3. Lastly, it is contended by the learned Assistant Government Pleader that the power under the provisions of Section 211 of the Code has been exercised as soon as the proposal for taking remedial action was received from the Collector and, therefore, it cannot be said that there is an undue or unreasonable delay in exercise of revisional jurisdiction. He, has, therefore, prayed that the petition be dismissed. 5. After having heard Mr. D.K. Puj, learned Counsel for the petitioners and Mr. J.K. Shah, learned Assistant Government Pleader for the respondents and having perused the averments made in the petition as well as the documents on record, I am of the considered opinion that the impugned order dated 10th January, 2008 [18th January, 2008] cannot be allowed to stand, for the reasons stated hereinafter. 5.1. It is not in doubt that the N.A. permission was granted by the Collector, on 11th September, 2006 and the show cause Notice for cancellation of the said permission was issued on 9th October, 2007, which is after a period of 13 months. It is also not in dispute that the impugned order, whereby the N.A. permission was cancelled has been passed on 10th January, 2008 [18th January, 2008]. If the provisions of Section 65 of the Code are perused, it is evident that the Collector is bound to inform the applicant of his decision on an application for N.A. permission within a period of three months from the date of application and, if the decision is not taken within this period, permission shall be deemed to have been granted. In the present case, an application was made by the petitioners on 10th July, 2006 and N.A. permission was granted by the Collector on 11th September, 2006, which is within a period of three months, as stipulated by Section 65 of the Code. 5.2. The learned Counsel for the petitioners has submitted that exercise of power by the respondents under the provisions of Section 211 of the Code after an unreasonably long period of time is contrary to the pronouncements of the Apex Court in the case of State of Gujarat vs. Patel Raghav Natha & Ors. (Supra) and of the High Court in the case of Zabir Mohmad Hafezi Ismail Patel & Ors. vs. State of Gujarat & Ors. (Supra). There can be no doubt regarding the legal position in this regard. In the case of State of Gujarat vs. Patel Raghav Natha & Ors. (Supra), the Apex Court has minutely considered the relevant provisions of the Bombay Land Revenue Code, including Section 65 of the Code thereof, and has held as under :— “12. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised. 13. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner act under Section 211. Under Sec. 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. This Section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted . Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations alteast within a few months from the date of the permission. In this case the Commissioner set-aside the order of the Collector on October 12, 1961, i.e. more than a year after the order, and it seems to us that this order was passed too late.” 5.3. In the case of Zabir Mohmad Hafezi Ismail Patel & Ors. vs. State of Gujarat & Ors. (Supra), the Court has observed as below :— “6. Learned Advocate Shri Jadeja for the petitioner is right in his submission that the revisional powers qua the NA permission under Section 65 of the Code could not be exercised beyond the reasonable period of 3 months in view of the binding ruling of the Supreme Court in the case of State of Gujarat vs. Patel Raghav Natha & Ors., reported in 1969 X GLR 992. The NA permission order was passed on 26th October, 1983. The show-cause notice for its revision under Sec. 211 of the Code was issued on 30th November, 1984, that is, nearly 13 months after the date of the NA permission order. It was thus clearly beyond the reasonable period of three months in view of the aforesaid binding ruling of the Supreme Court. The order at Annexure-B to the first and the second petitions cannot be sustained in law on this ground alone.” 5.4. In the case on hand, the show-cause Notice has been issued after a period of about 13 months from the date of passing of the order of grant of N.A. permission and the N.A. permission itself has been cancelled after about 15 months, by passing the impugned order, which action is clearly contrary to the principles of law laid down in the above-quoted decisions. 5.5 There is considerable force in the submission of the learned Counsel for the petitioners to the effect that the reasons for cancellation of N.A. permission as stated in the impugned order, that the opinions of certain authorities mentioned therein were not received on the date of the grant of the permission, is factually incorrect. 5.5 There is considerable force in the submission of the learned Counsel for the petitioners to the effect that the reasons for cancellation of N.A. permission as stated in the impugned order, that the opinions of certain authorities mentioned therein were not received on the date of the grant of the permission, is factually incorrect. This submission is also fortified from a perusal of the documents on record as well as the averments made in the affidavit-in-reply filed by the Respondent No. 3. The Respondent No. 1 has mentioned in the impugned order dated 11th September, 2006 that the opinions of the Executive Engineer, R & B, Patan, Chief Officer, Radhanpur, Executive Engineer, Gujarat Electricity Board, Radhanpur, District Health Officer, Radhanpur and the Mamlatdar and ALT, Radhanpur, had not been received before the NA permission was granted. This position is not factually borne out from the documents on record, which reveal that the Executive Engineer, R & B, Radhanpur had given his opinion on 30th October, 2006, the Chief Officer, Radhanpur, on 10th October, 2006, The Executive Engineer, Gujarat Electricity Board on 11th August, 2006, the District Health Officer, Patan on 18th August, 2006 and Mamlatdar and ALT, had given his opinion on 3rd August, 2006. These documents are to be found at pages 55, 52, 57, 54 and 51 of the paper book. All these opinions are in favour of the petitioners and none of the authorities have raised any objection with regard to the grant of N.A. permission to the petitioners. Although the Executive Engineer, Narmada and Executive Engineer, R & B [State] have given their opinions after the grant of N.A. permission i.e. on 7th November, 2006 and 23rd November, 2006, respectively, these opinions are also favourable to the petitioners and no objections have been raised for the grant of the N.A. permission. The relevant documents are to be found at pages 58 and 59 of the paper book. Since all the above named authorities have given favourable opinions regarding N.A. permission to the petitioners, the reason for cancellation of the permission on the ground that the opinions of the above mentioned authorities had not been received, before the grant of such permission, cannot be sustained or accepted. 5.6. Since all the above named authorities have given favourable opinions regarding N.A. permission to the petitioners, the reason for cancellation of the permission on the ground that the opinions of the above mentioned authorities had not been received, before the grant of such permission, cannot be sustained or accepted. 5.6. It is not in dispute that the petitioners had moved two applications to the Mamlatdar, Radhanpur, on 19th June, 1993 and 5th July, 1993 for rectification of the mistake in the measurement of the land in question, as mentioned in the relevant revenue record. After following the due procedure of law, the Mamlatdar, Radhanpur passed order dated 30th September, 1993 whereby the correct measurement of the said land was found to be 5 Acres and 20 Gunthas and not 2 Acres and 8 Gunthas and pursuant thereto, the necessary correction was made in the revenue records and revised entry No. 3629 was mutated on 5th October, 1993, which was certified on 6th November, 1993. It is on the basis of the order dated 30th September, 1993 that the Collector has granted N.A. permission for land admeasuring 5 Acres and 20 Gunthas. As the order dated 30th September, 1993 of the Mamlatdar, Radhanpur, was never challenged before any forum, it has attained finality and was rightly followed by the Collector, while granting N.A. permission. It, therefore, cannot now be said by the respondents that the order of the Mamlatdar is illegal and contrary to the record and, therefore, N.A. permission in favour of the petitioners is required to be cancelled on the ground that the permission could not have been accorded for an area of 5 Acres and 20 Gunthas. It was open to the respondents to challenge the order of the Mamlatdar dated 30th September, 1993, if they thought it fit. However, not having done so, the N.A. permission in favour of the petitioners cannot be cancelled on the ground that the measurement of the petitioners land in question has wrongly been mentioned in the revenue records pursuant to the said order of the Mamlatdar. As has been held by the Apex Court in the case of Pune Municipal Corporation vs. State of Maharashtra & Ors. (Supra), it is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. 5.7. As has been held by the Apex Court in the case of Pune Municipal Corporation vs. State of Maharashtra & Ors. (Supra), it is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. 5.7. It is an admitted fact that the Mamlatdar, is the competent authority to have passed the order dated 30th September, 1993 and unless and until the order is quashed and set-aside, it would hold the field and has to be given effect to. At this late stage, it does not lie in the mouth of the respondent authorities to turn around and say that the N.A. permission granted in favour of the petitioners should be cancelled, on the ground that the order of the Mamlatdar dated 30th September, 1993 is illegal and not in consonance with the record, especially when the respondent authorities have not challenged the same till date. 5.8. It is also relevant to notice that restrictions under the provisions of Section 43 of the Tenancy Act in respect of the land in question were removed vide orders dated 17th May, 2006, 20th May, 2006 and the petitioners have paid the full amount of premium as determined by the competent authority in this regard. While removing the restrictions under the provisions of Section 43 of the Tenancy Act, the competent authority has taken into consideration the measurement of 5 Acres and 20 Gunthas of land as held by the Mamlatdar vide order dated 30th September, 1993. The order of the Mamlatdar has been implemented by different authorities at various stages, of the grant of N.A. permission in favour of the petitioners, and after having implemented the same, the respondents cannot be permitted to say that the same is illegal, not in consonance with the record or void, especially as it has never been challenged and has attained finality. 5.9. 5.9. The submissions of the learned Assistant Government Pleader that the petitioners had not started the construction upon the land in question within the stipulated period and that there is discrepancy in the key plan of the TP Scheme as well as the map of Simtal, do not inspire much confidence, since these are not the reasons mentioned in the show-cause Notice issued to the petitioners for cancellation of the N.A. permission and nor are these factors mentioned in the impugned order. 6. Taking into consideration the legal and factual position as emerging from the above discussion, I am of the considered view that the writ petition deserves acceptance. Accordingly, the petition is allowed. The impugned order dated 10th January, 2008 [18th January, 2008] passed by the Respondent No. 1, is quashed and set-aside. Rule is made absolute. There shall be no orders as to costs.