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2016 DIGILAW 1039 (GUJ)

Bhikha Natha v. State of Gujarat

2016-06-07

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. As both the petitions arise out of the same order passed by the Additional Secretary (Appeals), Revenue Department i.e. respondent No. 1, the same are disposed of by this common order. 2. In both the petitions, the petitioners have challenged the impugned order dated 26.3.2012 passed by the respondent No. 1, as also the order dated 1.9.1999 passed by the respondent No. 2, whereby the order dated 3.2.1986 passed by the respondent No. 3, regularizing the encroachment made on land in question by the petitioner Keshurbhai Dosabhai Ahir of Special Civil Application No. 11393 of 2012, has been set aside. The petition being Special Civil Application No. 11606 of 2012 has been preferred by the petitioners, who are the legal heirs of deceased Bhikha Natha, the subsequent purchaser of the land in question. 3. The short facts giving rise to the present petitions are that the petitioner Keshurbhai Dosabhai Ahir was in occupation of the Government Kharaba land bearing Survey No. 463 paiki of Village Harshadpur, Taluka Jam Khambhailya, District Jamnagar, admeasuring about 2 acres, out of the total 9.08 acres. The Mamlatdar, Khambhaliya, therefore, having initiated the proceedings under Section 61 of the Gujarat Land Revenue Code (hereinafter referred to as "the Revenue Code") had passed the order dated 1.5.1985 for removing the said encroachment and directing the petitioner to pay penalty. The said petitioner, after making the payment of penalty, had submitted an application to the Mamlatdar, Khambhaliya through Circle Officer for regularization of the encroachment over the said land. The petitioner also submitted an application to the Deputy Collector i.e. respondent No. 3 for regularization of the said encroachment. The respondent No. 3 Deputy Collector, considering the opinion of the Mamlatdar and the Circle Officer, passed the order dated 3.2.1986 (Annexure-C) regularizing the said encroachment over the land admeasuring 2 acres subject to the conditions mentioned therein. Pursuant to the said order of the Deputy Collector, mutation entry dated 25.4.1987 (Annexure-F) was also recorded in the Village Form No. 6. It further appears that the respondent No. 2 Collector, thereafter initiated suo motu proceedings under Section 211 of the Land Revenue Code (hereinafter referred to as "the Revenue Code") and vide the impugned order dated 1.9.1999 (Annexure-B) set aside the order dated 3.2.1986 passed by the Deputy Collector. It further appears that the respondent No. 2 Collector, thereafter initiated suo motu proceedings under Section 211 of the Land Revenue Code (hereinafter referred to as "the Revenue Code") and vide the impugned order dated 1.9.1999 (Annexure-B) set aside the order dated 3.2.1986 passed by the Deputy Collector. In the meantime, it appears that the said land was sold out by the said petitioner Keshurbhai Dosabhai Ahir to Bhikhabhai Nathabhai, the predecessor of the petitioners of SCA No. 11606 of 2012, by executing the sale deed dated 29.3.1993 (Annexure-D). The said order dated 1.9.1999 came to be confirmed by the respondent No. 1 in the revision filed by the petitioner Keshurbhai Dosabhai Ahir as per the impugned order dated 26.3.2012 (Annexure-A). Being aggrieved by the said order, the present petitions have been preferred. 4. Mr. J.P. Bhatt, learned Counsel for the petitioners, vehemently submitted that the respondent No. 2 could not have exercised the suo motu powers under Section 211 of the Revenue Code after a gross delay of 13 years and set aside the order passed by the Deputy Collector. He has placed heavy reliance upon the decision of the Supreme Court in the case of State of Gujarat Vs. Patel Raghav Natha and Ors., reported AIR 1969 SC 1297 and on the decision of this Court in the case of Laxmiben S. Patel Vs. D.Y. Collector, reported in 2000 (0) GLHEL-HC 206830 (SCA No. 5206 of 1990 dated 22.9.2000) in support of his submission that the suo motu powers should be exercised by the authorities within a reasonable time. He further submitted that even as per the Circular dated 8.1.1980, the Deputy Collector had powers to regularize the encroachment over the land up to the area of 2 acres and, therefore also, the impugned orders passed by the Collector and the Additional Secretary (Appeals) are bad in the eye of law. 5. However, the learned AGP Mr. Patel for the respondents, while conceding that there was gross delay on the part of the respondent No. 2 in exercising of the powers under Section 211 of the Code, submitted that the order passed by the Deputy Collector being without any authority of law was illegal, and therefore, the question of limitation would not arise. Patel for the respondents, while conceding that there was gross delay on the part of the respondent No. 2 in exercising of the powers under Section 211 of the Code, submitted that the order passed by the Deputy Collector being without any authority of law was illegal, and therefore, the question of limitation would not arise. He further submitted that the encroachment having been made on the agricultural land, only the Collector had the power to regularize such encroachment, as per the circulation dated 8.1.1980. 6. In the instant case, at the outset, it is required to be stated that the respondent No. 2 Collector had exercised the powers under Section 211 of the Revenue Code about 13 years after the order was passed by the respondent No. 3 Deputy Collector regularizing the encroachment made by the petitioner. Though it is true that no period of limitation is prescribed under the said provision, as per the settled legal position, the concerned authority is required to exercise the suo motu powers within a reasonable time. Of course, what is the reasonable time would depend upon the facts of each case. In this regard a very pertinent observations made by the Supreme Court in the case of State of Gujarat Vs. Patel Raghav Natha & Ors. (supra) are required to be reproduced, which read as under:- "The question arises whether the Commissioner can revise an order made under s. 65 at any time. It is true that there is no period of limitation prescribed under s. 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." 7. In case of Mansaram Vs. S.P. Pathak and Ors., reported in AIR 1983 SC 1239 also it has been held as under:- "Where the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercise of power inheres its exercise within as reasonable time. This is too well established to need buttressing by precedent. However, one is readily available in State of Gujarat vs. Patel Raghav Natha and Others, (1970) 1 SCR 335 ." 8. This is too well established to need buttressing by precedent. However, one is readily available in State of Gujarat vs. Patel Raghav Natha and Others, (1970) 1 SCR 335 ." 8. So far as facts of the present case are concerned, the respondent No. 3 had vide the order dated 3.2.1986 regularized the encroachment made by the petitioner in respect of two acres of land of Survey No. 463, subject to the conditions mentioned therein. After passing of the said order, the petitioner Keshurbhai Dosabhai Ahir had sold out the said land to Bhikhabhai Nathabhai (now deceased) by executing the sale deed in the year 1993, in respect of which the entry was also mutated in the revenue record. Thereafter in the year 1999 the respondent No. 2 Collector suo motu initiated the proceedings under Section 211 of the Revenue Code and set aside the order passed by the Deputy Collector on the ground that the Deputy Collector did not have the powers to regularize the encroachment in respect of the agricultural land. It is pertinent to note that the respondent No. 2 Collector has in his order stated that the original file of the land in question was not traceable in the office of the Deputy Collector, and therefore, an inquiry was also initiated. Apart from the fact that there was nothing on record to suggest that the petitioner had made encroachment on the agricultural land, from the order dated 3.2.1986 passed by the Deputy Collector, it was clear that petitioner had made encroachment over the land in question and the said encroachment was regularized for carrying on agricultural operations. It did not state that the encroachment was made by the petitioner over the agricultural land. Therefore, the contention of the learned AGP, that the petitioner having made encroachment over the agricultural land, only the Collector had the powers to regularize the same, cannot be accepted. Even otherwise, it appears that as per the Circular dated 8.1.1980 (Annexure-C/1), the Deputy Collector was empowered to regularize the encroachment made by the persons belonging to backward class or other than backward class, in respect of the land up to the area of 2 acres. Of course, the petitioner has neither categorically stated in the petition, nor does it transpire from the other documents that the petitioner belongs to the category of backward class or other than backward class. Of course, the petitioner has neither categorically stated in the petition, nor does it transpire from the other documents that the petitioner belongs to the category of backward class or other than backward class. However, since the original file is not traceable, the Court has no reason to disbelieve the oral submission made by the learned Advocate for the petitioner that the petitioner being the person belonging to OBC, the Deputy Collector had passed the order regularizing the encroachment made by him up to 2 acres. 9. Even otherwise, the Collector having exercised the powers under Section 211 of the Revenue Code suo motu 13 years after the said order was passed by the Dy. Collector, the said period cannot be said to be reasonable period by any stretch of imagination. It appears that since the petitioner Keshurbhai Dosabhai Ahir had already sold out the said land to the predecessor of the petitioners Bhikhabhai Nathabhai, he was not aware about the order passed by the respondent No. 2 Collector under Section 211 of the Revenue Code and, therefore, there was delay in preferring the revision petition before the respondent No. 1 also. There is also nothing on record to show that the Collector had passed the impugned order after providing opportunity of hearing to the petitioners. Hence, the impugned order passed by the respondent No. 2 Collector being in violation of the principles of natural justice, and even otherwise having been passed after an inordinate and unreasonable delay of 13 years, the respondent No. 1 should not have confirmed such order. 10. In that view of the matter, the Court is of the opinion that the impugned orders passed by the respondent Nos. 1 and 2 being illegal deserve to be quashed and set aside, and are hereby set aside. 11. Both the petitions stand allowed accordingly. Rule is made absolute accordingly.