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2016 DIGILAW 2092 (GUJ)

State of Gujarat v. Veljibhai Bachubhai

2016-10-03

R.M.CHHAYA

body2016
ORDER : R.M. CHHAYA, J. 1. Heard Ms. Maithili Mehta, learned Assistant Government Pleader for the petitioners and Mr. Anshin Desai, learned advocate with Mr. Zalak Pipalia, learned advocate for respondents. 2. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the order dated 30.10.2012 passed by the Secretary, Revenue Department (Appeals) in Revision Application no. MVV/JMN/JND/1/2010, whereby the Secretary, Revenue Department (Appeals) was pleased to quash and set aside the order dated 10.8.2009 passed by the District Collector, Junagadh being order no. Land/ 1.C/7883/2-3/2009. It may be noted that the present writ petition was heard with Special Civil Application no. 17109 of 2015 filed by the State of Gujarat and the same pertains to survey no. 2 6/1 of Mouje Zanzarda, District Junagadh, which is also disposed of by a separate judgment by the order of even date. 3. Following facts emerge from the record of the petition:- 3.1 That, the respondents herein jointly purchased land baring survey no. 26 part situated at Village Zanzarda, Taluka District Junagadh which is now situated within the local limits of Junagadh Municipal Corporation from its owners Kanbi Bhikhabhai Kanabhai Akbari by a registered sale deed dated 3.11.1989 and entry no. 74 9 was also mutated in the name of the respondents which came to be certified on 4.11.1989 The record indicates that in the sale deed itself, there is a clear mention that out of 8 acres and 13 gunthas, 1 acre has been deducted for road purposes and hence, the remaining 7 acres and 13 gunthas was purchased by the respondents. 3.2 The record indicates that the land in question is part of original survey no. 26 which was subdivided as survey no. 26/1 which is subject matter of Special Civil Application no. 17109 of 2015 as observed hereinabove and the present matter relates to survey no. 26/2. The record also indicates that as per entry no. 538 dated 2.10.1981 which relate to family arrangement between the original owners, area admeasuring 8 acres and 13 gunthas came to the share of the predecessor of the respondents Kanbi Bhikhabhai Kanabhai Akbari. 17109 of 2015 as observed hereinabove and the present matter relates to survey no. 26/2. The record also indicates that as per entry no. 538 dated 2.10.1981 which relate to family arrangement between the original owners, area admeasuring 8 acres and 13 gunthas came to the share of the predecessor of the respondents Kanbi Bhikhabhai Kanabhai Akbari. The record further indicates that on an application made by the respondents by an order dated 6.3.1990, the collector granted permission for conversion of land from agricultural use to non-agricultural use i.e. for residential purpose after taking into consideration the opinions from different authorities like District Development Officer, Taluka Development Officer, Deputy Town Planner, GEB, etc. As averred in the affidavit filed by the respondents after the N.A. was granted vide order dated 6.3.1990, the respondents herein sold the plots to various individuals for residential purpose and as averred in the affidavit which is not denied by the petitioner herein, the whole chunk of the land in question is developed for residential purposes. It is also a matter of record that by an entry no. 766 dated 16.3.1990 mutated in the revenue records which came to be certified on 28.5.1990 speaks of the sale of plots to individuals. 3.3 Even at the cost of repetition, it deserves to be noted that the area comprising of original survey no. 26 part 1 was purchased by the respondents no. 1 to 9 of Special Civil Application no. 17109 of 2015 and the said land was also converted into non-residential use i.e. for residential purpose. It is also a matter of record that the DILR, Junagadh by a communication dated 25.6.2002 sent a communication to the Talati-cum-Mantri of Zanzarda Gram Panchayat pointing out that the record Durasti has taken place in the year 1975, however Puravani Patrak No. 8 has not been executed. It is also a matter of record that Rojkam was carried out on 27.7.2002, Hissa Form no. 4 was accordingly corrected and earlier measurement came to be implemented and entered in the revenue records. It is also a matter of record that Rojkam was carried out on 27.7.2002, Hissa Form no. 4 was accordingly corrected and earlier measurement came to be implemented and entered in the revenue records. 3.4 Thereafter, after a period of about 7 years, the proceedings came to be initiated on the basis of the report of the DILR which culminated into impugned show cause notice issued by the Collector after a period of about 20 years in the present case which was replied by the respondents herein which culminated into the order dated 21.11.2009 passed by the District Collector. Being aggrieved by the said order, the respondents herein preferred a revision under Section 211 of the Bombay Land Revenue Code, 1879 which came to be registered as Revision Application No. MVV/DKE/JND/1/2010 before the Secretary, Revenue Department (Appeals) which came to be allowed vide order dated 30.10.2012 which is impugned in this petition after a period of 3 years. The respondents have filed a detailed affidavit-in-reply and have brought on record copies of the original revenue records as well as the current position of the land in question and the said affidavit has not been controverted further by the petitioners. 4. Ms. Maithili Mehta, learned Assistant Government Pleader for the petitioners has taken this Court through the order passed by the Collector and has raised the following contentions:- [a] That, the Secretary, Revenue Department (Appeals) has erred in coming to the conclusion that there is no encroachment. [b] It is also contended that the Secretary, Revenue Department (Appeals) has erred in reversing and quashing the findings of fact about the measurement and discrepancy without any just and proper reason. [c] The Secretary, Revenue Department (Appeals) has wrongly considered the aspect of delay. [d] It is contended that on the basis of the re-measurement the proceedings were initiated as the measurement do not match and such an important aspect is not appreciated by the Secretary, Revenue Department (Appeals) as is done in the adjoining land which is subject matter of Special Civil Application no. 17109 of 2015. 5. Per contra, Mr. Anshin H. Desai, learned advocate with Mr. Zalak Pipalia, learned advocate for the respondents has supported the order impugned and has relied upon the affidavit-in-reply filed by the respondents which is not controverted by the petitioner. 17109 of 2015. 5. Per contra, Mr. Anshin H. Desai, learned advocate with Mr. Zalak Pipalia, learned advocate for the respondents has supported the order impugned and has relied upon the affidavit-in-reply filed by the respondents which is not controverted by the petitioner. Relying upon the judgments of the Apex Court in Postmaster General v. Living Media India Ltd. reported in (2012) 3 SCC 563 , it was contended that the present petition is also preferred after a period of 3 years after passing of the order by the Secretary, Revenue Department (Appeals). [a] It is contended that the petitioner has not produced copies of the original record of the case and the petitioner has suppressed material facts, dates and events. [b] It is contended that in the instant case, the proceedings were initiated after a delay of 20 years and relying upon the ratio laid down by the Apex Court in the case of State of Gujarat v. Raghavnatha, reported in AIR 1969 SC 1297 it was contended that the proceedings have been initiated by way of show cause notice after a lapse of 20 years from the sale and 19 years from the date of the permission and meanwhile, all the plots have been sold and developed. [c] It is also contended that there is no irregularity worth the name and as mentioned in the sale deed itself, the respondents have clearly mentioned and have on the contrary deducted 1 acre from the area which is mentioned in the revenue records though no compensation is ever paid to the original owner. [d] It is also contended that the very action initiated by the show cause notice is mala-fide, barred by law and the present petition also involves disputed questions of fact which cannot be decided in a petition under Article 227 of the Constitution of India. It is therefore contended that the petition deserves to be dismissed. 6. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties. 7. Before reverting to the submissions made by both the sides, the following facts need to be noted:- The revenue records as it stood in on 11.6.1924 shows name of Meghji Parbat and Karamshi Mulji. Further, in the revenue record, survey no. 26 came to be sub-divided as part 26/1 and 26/2. 7. Before reverting to the submissions made by both the sides, the following facts need to be noted:- The revenue records as it stood in on 11.6.1924 shows name of Meghji Parbat and Karamshi Mulji. Further, in the revenue record, survey no. 26 came to be sub-divided as part 26/1 and 26/2. The predecessor-in-title of the respondents-Kanbi Bhikhabhai Kanabhai Akbari as per the revenue record being entry no. 538 dated 2.10.1981 certified on 4.11.1981 became owner of survey No. 26 part by way of a family arrangement to the tune of 8 acres and 13 gunthas and the remaining 8 acres and 13 gunthas went to the share of Mansukh Kana (Annexure-H Page 33 of the paper book) and the present respondents have purchased by a registered sale deed at registration no. 3006 on 3.11.1989 The sale deed at Annexure-I to the affidavit (Page 90) in the preamble itself mentions the fact that out of 8 acres and 13 gunthas, survey No. 26 part, 1 acre has gone in Junagadh to Dhandhusar Road and the remaining 7 acres and 13 gunthas is purchased by the said sale deed. 8. Also considering the reasons and observations made in the judgment rendered in Special Civil Application no. 17109 of 2015 of the even date and the order impugned in this petition, it makes it clear that the conclusion reached by the Secretary, Revenue Department (Appeals) is based upon the original record before promulgation and the original revenue records which cannot be termed and called an error apparent on the face of the record. As observed hereinabove, in the preamble of the sale deed itself, it is clearly mentioned that the sale is for 7 acres and 13 gunthas by deducting 1 acre which has gone in the road from Junagadh to Dhandhusar. It is also an admitted position that the sale deed was executed on 3.11.1989 and entry no. 749 came to be mutated in the revenue record which was certified on 8.12.1989 and N.A permission was granted on 6.3.1990 It is also an admitted position that the land in question has been plotted as per the layout which was sanctioned by the Collector himself as an authority under Section 65 of the Bombay Land Revenue Code, 1879 and the said plots are already sold and in majority of the plots, construction has been made. Entries of such sale has been mutated in the revenue records being entry no. 766 dated 16.3.1990 which came to be certified on 28.5.1990 It is therefore a matter of record that the petitioner was aware about the transfer, conversion of land from agriculture to non-agriculture and it is further transferred to individual plot holders in the city limits of Junagadh and the development which has taken place is presumably eye-catching. However, show cause notice came to be issued in the month of July i.e. after a period of 20 years of sale and 19 years from the date of N.A. permission. 9. It is an admitted position that the show cause notice was issued in July, 2009 i.e. almost after a period of 20 years of sale and 19 years from the date of N.A. permission. On perusal of the show cause notice, though the said facts have been considered and the earlier entries have been mentioned, the same was not considered by the Collector while passing the order. On perusal of order passed by the Secretary, Revenue Department (Appeals), the Secretary, Revenue Department (Appeals) has considered the revenue records right from 1924 onwards and has also considered the subsequent transfers and entries to that effect and has considered the fact that the entries which are relied upon by the private respondents is not at all taken into revision or disturbed. The Secretary has also considered the fact that even in the DILR report dated 8.12.1974, the area is mentioned as 9 acres and 19 gunthas. The aforesaid facts therefore clearly makes it clear that the conclusion reached by the Secretary, Revenue Department (Appeals) is based upon the original record before promulgation of the petitioners themselves and the same cannot be termed and called an error apparent on the face of the record. It is no doubt true that in the sale deed which is executed by the erstwhile owner in favour of the private respondents, the area of the land in question was mentioned as 7 acres and 13 gunthas. However, as observed earlier and as rightly contended by Mr. Desai that in preamble of the sale deed itself, it is noted that 1 acre has gone in road. However, as observed earlier and as rightly contended by Mr. Desai that in preamble of the sale deed itself, it is noted that 1 acre has gone in road. It is a matter of fact that by an order dated 6.3.1990, lands were developed by the private respondents and converted the agricultural land to non-agricultural residential purpose, lands have been plotted and have already been transferred whereas the show cause notice was issued after 6 years and the Secretary, Revenue Department (Appeals) has also noted that the area of the land in question is fully constructed. At the first blush, though it appears that the area of the land in question as per the revenue records and the sale deed is 7 acres and 13 gunthas, there is no discrepancy to the tune of 2 acres and 1 guntha. However, on examination of the original record, it clearly appears that as per the DILR record, Hissa Form no. 4 as well as Puravani Patrak no. 8, the area which was held by the predecessor of the private respondents was 9 acres and 19 gunthas. In light of the aforesaid therefore, the very basis of the show cause notice that there is encroachment does not find favour from the original record only because the records are not updated or when the measurement of 1975 was erroneous to the extent of mentioning the area, the same cannot be termed as measurement that too after a lapse of almost 20 years by now. After the N.A permission was given in the year 1990 as averred in the affidavit-in-reply, the private respondents have transferred all the plots to third parties and the land has been almost fully developed and the equities have been created. 10. At this stage, it would be advantageous to refer to the decision of the Hon'ble Apex Court in the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, reported in (2012) 5 SCC 157 wherein, the Hon'ble Apex Court, while examining the explanation rendered by the Corporation for delay of 7 years, has been pleased to observe thus:- “14. We have considered the respective arguments/submissions and carefully scrutinized the record. The law of limitation is founded on public policy. We have considered the respective arguments/submissions and carefully scrutinized the record. The law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the Court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the Legislature. At the same time, the Courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation. 15. The expression “sufficient cause” used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay. 23. What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24 What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. 25. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. 25. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision-making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.” 11. Similarly, in the case of Postmaster General (supra), it has been observed as under:- “27. It is not in dispute that the persons concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. “28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona-fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government. 29. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government. 29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.” 12. Similarly, in the case of Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 , the Hon'ble Apex Court observed thus:- “15. The expression “sufficient cause” employed in Section 5 of the Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice. Although, no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector (L.A.) v. Katiji, N. Balakrishnan v. M. Krishnamurthy and Vedabai v. Shantaram Baburao Patil. 16. Although, no hard-and-fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector (L.A.) v. Katiji, N. Balakrishnan v. M. Krishnamurthy and Vedabai v. Shantaram Baburao Patil. 16. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Land Acquisition Officer, State of Haryana v. Chandra Mani, State of U.P v. Harish Chandra, State of Bihar v. Ratan Lal Sahu, State of Nagaland v. Lipok AO and State (NCT of Delhi) v. Ahmed Jaan.” 13. This Court in Special Civil Application No. 10113 of 2012 in an identical fact situation has taken a similar view, against Special Leave to Appeal No. 12743 of 2014 came to be filed, which was dismissed on 22.8.2014 14. This Court (Coram: Ms. Harsha Devani, J.) in Special Civil Application No. 11268 of 2013, relying upon the judgments of the Apex Court in the cases of Postmaster General (supra), Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107 , G. Ramegowda, Major v. Special Land Acquisition Officer, Bangalore, (1988) 2 SCC 142 , State of Haryana v. Chandra Mani, (1996) 3 SCC 132 and State of U.P. v. Harish Chandra, (1996) 9 SCC 309 was pleased to reject the petition filed by the State on ground of delay of three and a half years. The said judgment was carried forward by the State of Gujarat by way of filing Letters Patent Appeal no. 44 of 2015 which was dismissed by the Division Bench of this Court vide judgment and order dated 21.1.2015 Against which, the State preferred Special Leave to Appeal no. The said judgment was carried forward by the State of Gujarat by way of filing Letters Patent Appeal no. 44 of 2015 which was dismissed by the Division Bench of this Court vide judgment and order dated 21.1.2015 Against which, the State preferred Special Leave to Appeal no. 13351 of 2016 which came to be dismissed on the ground of delay by the Hon'ble Apex Court vide order dated 25.7.2016 15. The ratio laid down in the aforesaid cases and other catena of decisions shall squarely apply to the case on hand and it being an admitted position that the actions are taken after a delay of 19/20 years would be fatal and therefore, on grounds of delay also, the very action deserves to be quashed and set aside. Even the present petition is filed after a lapse of 3 years and more for which except a formal explanation of administrative exigency, nothing is put forward and as such therefore, the present petition also suffers from delay. 16. In view of the aforesaid discussion, the petition deserves to be dismissed on merits as well as delay. It clearly appears from the order impugned that the Secretary, Revenue Department (Appeals) has taken into consideration all aspects and after proper appreciation of evidence on record and also considering the equities which have been created and after discussing the title as well as the transfer of the land in question right from its original owner to the present respondents and after examining the Government record and the revenue record has rightly allowed the Revision. This Court finds that there is no error much less any error apparent on the face of the record which requires interference by this Court in its extraordinary jurisdiction under Article 226 as well as supervisory jurisdiction under Article 227 of the Constitution of India. The petition is therefore liable to be dismissed both on merits as well as delay and the same is hereby dismissed. There shall be no order as to costs.