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2016 DIGILAW 1730 (GUJ)

Gordhanbhai Bikhabhai Kodi v. State of Gujarat

2016-08-11

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. All the five petitions arise out of the common order dated 03.03.2000 passed by the respondent No. 1 - S.S.R.D. in the revision petitions filed by the petitioners challenging the various orders passed by the respondent No. 2 - Deputy Collector, and therefore, all the petitions were heard simultaneously, and this common judgment is being passed. 2. The Special Civil Applications Nos. 4520 of 2000 to 4522 of 2000 have been filed by the petitioner Gorahdnbhai Bhikhabhai Kodi, and the Special Civil Applications Nos. 4523 of 2000 and 4524 of 2000 have been filed by the petitioner - Maganbhai Bhikhabhai Kodi, challenging the common order dated 03.03.2000 passed by the respondent - S.S.R.D., who has confirmed the various orders passed by the respondent - Deputy Collector holding the respective sale deeds executed in favour of the petitioners as invalid, and directing the petitioners to pay the penalty, and to restore the possession of the respective lands to the concerned respondent No. 3 on the ground that such sales were violative of the provisions contained in the Section 8 of the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as 'the Fragmentation Act'). The factual details of all the petitions may be summarized in the tabular form as under:- Sr. No. Petitioner/Purchaser Respondent/Seller Date of Sale Survey No. Area Sq. Mtrs. Entry No. Date of Deputy Collector’s order 1. Gorahdnbhai Bhikhabhai Kodi Gohil Jorsangbhai Kacharab hai 22.06.1987 12/12 36 Gunthas 219 29.01.1997 2. Gorahdnbhai Bhikhabhai Kodi Hemubha Bhurabha Gohil 19.06.1968 12/1 1 Acre 1 Guntha 218 29.01.1997 3. Gorahdnbhai Bhikhabhai Kodi Kiritsinh Mangalsinh Gohil 19.06.1987 12/12 10 Gunthas 217 31.03.1997 4. Maganbhai Bhikhabhai Kodi Kasalsang Mangalsang 19.06.1987 12/13 1 Acre 23 Gunthas 216 27.01.1997 5. Maganbhai Bhikhabhai Kodi Gohil Kirtisinh Mangalsinh 19.06.1987 12 24 Gunthas 215 31.03.1997 3. It is sought to be submitted by the learned Senior advocate Mr. A.J. Patel appearing for the petitioners that the Deputy Collector had initiated the action against the petitioners in respect of the lands in question 8 years after the entry was mutated in the revenue records in the name of respective petitioners. It is sought to be submitted by the learned Senior advocate Mr. A.J. Patel appearing for the petitioners that the Deputy Collector had initiated the action against the petitioners in respect of the lands in question 8 years after the entry was mutated in the revenue records in the name of respective petitioners. Placing heavy reliance on the decision of the Division Bench of this Court in the case of Labubhai Valjibhai Gajera versus Secretary (Appeals) Revenue Department, Gujarat State and Others reported in 2011 (1) GLR 279 , he submitted that the proceedings initiated after delay of more than 3 years, could not be said to have been initiated within reasonable period, and therefore, the order passed by the Deputy Collector, which has been confirmed by the S.S.R.D., deserves to be set aside. He further submitted that the respondent - Deputy Collector had also committed an error in declaring the sale made in favour of the petitioners as invalid, and in setting aside the mutation entries made in their favour, while exercising jurisdiction under the Fragmentation Act, which is not permissible. He further contended that in the impugned order, the Deputy Collector has failed to deal with the issue as to how the fragment was created in each case as a result of the sales in question. Mr. Patel, also submitted that both the petitioners are brothers, and are jointly cultivating the lands in question, and therefore no fragment as alleged could be said to have been created merely because the separate sale deeds were executed in their favour. 4. Nobody appears for the respective respondent Nos. 3 i.e. the sellers. The learned advocate Mr. Ashok Parmar appearing for the legal heirs of the deceased respondent No. 4 Sursangbhai Mavsangbhai in Special Civil Application No. 4520 of 2000, submitted that the land bearing Survey No. 12/12 was sold out to Gagaji Mavsangbhai by the respondent No. 3 - Gohil Jorsangbhai Kacharabhai on 23.11.1957, and that the said Gagaji Mavsangbhai had further sold the said land to the deceased respondent No. 4 Sursangbhai Mavsangbhai on 24.01.1963, and therefore, the said respondent No. 3 Jorsangbhai Kacharabhai could not have sold the said land to the petitioner Gordhanbhai Bhikhabhai in 1987. According to him, the respondent - Deputy Collector had rightly set aside the said sale deed executed in favour of the petitioner Gordhanbhai Bhikhabhai. According to him, the respondent - Deputy Collector had rightly set aside the said sale deed executed in favour of the petitioner Gordhanbhai Bhikhabhai. The learned AGPs appearing for the respective respondents authorities supporting the findings recorded by the Deputy Collector as well as by the S.S.R.D., submitted that the petitioners having purchased the lands in question in violation of the provisions contained in the Fragmentation Act, the said sales were liable to be cancelled, and the entries were liable to be set aside. 5. In the instant case, the facts narrated above, in tabular form have not been disputed by the concerned respondents. Though, the learned advocate Mr. Ashok Parmar appearing for the respondent No. 4 in Special Civil Application No. 4520 of 2000 has sought to challenge the validity of the sale deed dated 22.06.1987 executed in favour of the petitioner Gordhanbhai Bhikhabhai on the ground that the respondent No. 3 Gohil Jorsangbhai could not have sold the said land bearing Survey No. 12/12 to the petitioner as earlier the said land was purchased by one Gagaji Mavsangbhai from the said respondent No. 3 on 23.11.1957, and thereafter, by the respondent No. 4 Sursangbhai Mavsangbhai on 24.01.1963, the said submission of learned advocate Mr. Parmar could not be accepted for the simple reason that admittedly no entries were made in the revenue record in respect of the said sales as alleged by the respondent No. 4, nor the sale deed dated 22.06.1987 executed by the respondent No. 3 in favour of the petitioner, has been sought to be challenged by the legal heirs of deceased respondent No. 4 by filing any substantive suit in the Civil Court. 6. It is required to be noted that the respondent - Deputy Collector had initiated suo moto proceedings and issued notice to the petitioners in April 1996 calling upon them to show cause as to why the action under Section 9 of the Fragmentation Act should not be taken, in respect of the sale deeds executed in 1987. The Deputy Collector, thereafter, vide the impugned orders, passed in the respective cases set aside the sale deeds executed in favour of the petitioners by holding that such sales were invalid, and also set aside the respective entries made in favour of the petitioners. The Deputy Collector, thereafter, vide the impugned orders, passed in the respective cases set aside the sale deeds executed in favour of the petitioners by holding that such sales were invalid, and also set aside the respective entries made in favour of the petitioners. The Deputy Collector also imposed penalty under Section 9 on the petitioners for the alleged violation of the provisions contained in the Fragmentation Act, and restored the possession of the lands in question to the respective respondent Nos. 3, who were the owners of the lands in question. The said orders of Deputy Collector have been confirmed by the S.S.R.D. by passing the common impugned order. It cannot be gainsaid that where no period of limitation has been prescribed in the statute for exercise of the suo moto powers, the authority must exercise such powers within reasonable period, and the reasonable period would depend on the facts and circumstances of each case. In the instant case, the Court is of the opinion that the proceedings initiated by the respondent - Deputy Collector under the provisions contained in the Fragmentation Act, eight years after the sale deeds were executed, and the respective mutation entries were made in favour of the petitioners, could not be said to have been initiated within the reasonable time, and such proceedings are hit by the vice of delay. 7. It is also pertinent to note that the Deputy Collector in the impugned orders has declared the respective sale deeds executed in favour of the petitioners as invalid, and set aside the mutation entries made in their favour while taking action under the provisions contained in the Fragmentation Act. As per the settled legal position, the respondent Deputy Collector could not have exercised the powers conferred under one Act, while dealing with the question under the another Act. In this regard a beneficial reference of the decision in the case of Evergreen Apartment versus Co-op. Housing Society versus Special Secretary, Revenue Department, Gujarat State reported in 1991 (1) GLR 113 , be made. 8. The Court also finds substance in the submissions made by learned advocate Mr. Patel to the effect that the Deputy Collector had failed to consider the provisions of the Fragmentation Act, as to how the fragment was created by the purchase of lands in question by the petitioners. 8. The Court also finds substance in the submissions made by learned advocate Mr. Patel to the effect that the Deputy Collector had failed to consider the provisions of the Fragmentation Act, as to how the fragment was created by the purchase of lands in question by the petitioners. As per the definition contained in Section 2(4) of the Fragmentation Act, 'fragment' means a plot of land of less extent than the appropriate standard area determined under the Act. As per Section 2(10), 'standard area' in respect of any class of land means the area which the State Government may from time to time determine under Section 5 as the minimum area necessary for profitable cultivation in any particular local area, and includes a standard area revised under the said section. There is nothing on record to show as to what was the standard area in the particular village, and as to how a fragment was created by the petitioners in violation of the provisions contained in the said Act. Even if it is presumed that the lands purchased by the petitioners by separate sale deeds were fragments, the respective entries were made in that regard as back as in the year 1987, which have been sought to be revised suo moto by the Deputy Collector in the year 1995 i.e. after a period of eight years. 9. According to the petitioners, they being brothers were jointly cultivating the lands in question, though purchased from different sellers, and that all the parcels of the lands were part of same survey No. 12, and therefore, as such no fragment could be said to have been created. It is also the case of the petitioners that they are in possession of the said lands in question since last many years, and are also paying the revenue since they had purchased the said parcels of lands. Be that as it may, without expressing any opinion on the disputed question as to whether the petitioners are in possession of the lands in question or not, the Court is of the opinion that the sale deeds executed in their favour, and the mutation entries made in their names could not have been set aside by the Deputy Collector after an unreasonable delay of eight years. The said orders of Deputy Collector have been erroneously confirmed by the S.S.R.D., in utter disregard of the settled legal position, by passing the impugned order which deserves to be set aside. 10. In that view of the matter, the impugned orders passed by the Deputy Collector and the S.S.R.D. are hereby set aside. All the five petitions stand allowed accordingly. Rule is made absolute in all the five petitions.