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2019 DIGILAW 1170 (GUJ)

Hiteshkumar Bhanjibhai Joshi v. State of Gujarat

2019-12-19

VIPUL M.PANCHOLI

body2019
JUDGMENT : VIPUL M. PANCHOLI, J. 1. Rule. Learned AGP Ms. Divyangna Jhala waives service of notice of rule for respondent authorities. 2. In this petition, which is filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 29.08.2017 passed by the respondent no. 1, by which, Revision Application filed by the petitioner has been dismissed. 3. Heard learned advocate, Mr. S.M. Kikani for the petitioner and learned AGP Ms. Divyangna Jhala for respondent authorities. Though served, none appears for the private respondents. 4. Learned advocate for the petitioner submits that the dispute in the present matter is with regard to the land bearing Survey No. 266/1 admeasuring A201G, situated at moje Village: Jafrabad, Taluka: Jafrabad, District: Amreli, which was owned and occupied by one Lakhabhai Surabhai Makwana, who is father of the respondent no. 3 herein. He submitted that after the death of the father of the respondent no. 3, Revenue Entry No. 504 came to be mutated and thereby the name of the respondent no. 3 came to be mutated in the revenue record. It is further submitted that in the year 1996, the respondent no. 3 sold the land in question to the respondent nos.4 and 5 by registered sale-deed, which was executed on 11.04.1996 and pursuant to the said sale-deed, Entry No. 640 came to be mutated on 20.08.1996, which was subsequently certified. 5. At this stage, it is contended that when Mutation Entry Nos. 504 and 640 were mutated in the revenue record, the said land was not shown as new tenure land. 6. Learned advocate for the petitioner, thereafter, contended that the petitioner purchased the land in question after verification of the revenue record vide Entry No. 950, which was certified. 7. The grievance of the petitioner is that after a period of more than 18 years of the mutation of the revenue entry in favour of the predecessor in title of the petitioner and after a period of 6 years from the entry, which was mutated in the name of the petitioner in the revenue record, the respondent-Mamlatdar sent proposal to the Assistant Collector that Entry No. 640, which was mutated in the revenue record in the name of the predecessor in title of the petitioner was wrongly mutated as the land in question is new tenure land. It is, therefore, submitted that the show cause notice was issued after a period of 18 years from the mutation of Entry No. 640 and thereafter, the respondent authorities have passed impugned orders. It is contended that the suo motu exercise of powers after a period of 18 years is grossly delayed and, therefore only on this ground, the impugned orders be quashed and set aside. 8. Learned advocate, Mr. Kikani has placed reliance upon following judgments: (1) Vinesh Devchand and Co. vs. Joint Secretary (Appeals), Revenue Department and Others, 2018 (3) GLR 1388 (2) Dudhiben Muljibhai Patel vs. State of Gujarat, 2016 (2) GLR 1786 (3) Bharatbhai Naranbhai Vegda vs. State of Gujarat, 2016 (2) GLR 1021 (4) Ratilal Maganlal Intwala vs. Special Secretary (Appeal), 2013 (3) GLR 2520 (5) Rameshbhai Ambalal Shah vs. State of Gujarat, 2011 (3) GLR 2587 (6) Valjibhai Jagjivanbhai vs. State of Gujarat, 2005 (3) GLR 1852 (7) Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim, 1997 (6) SCC 71 (8) Bhaniben Makanbhai Tandel vs. State of Gujarat, 1992 (1) GLH 93 9. Relying upon the aforesaid judgments, it is urged that this petition may be allowed. 10. On the other hand, learned AGP has referred to the averments made in the affidavit-in-reply filed on behalf of the respondent authorities and, thereafter, contended that as the land in question is new tenure land, the predecessor in title of the petitioner could not have sold the land and, therefore, when the entry in question was wrongly mutated in the revenue record, the proceedings were initiated for cancellation of the said entries and, therefore, no error is committed by the respondent authority while cancelling the entries in question. He submitted that if the transaction is void, powers can be exercised at any point of time. It is, therefore, urged that this petition be dismissed. 11. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the respondent no. 3 sold the land in question by registered sale-deed to the respondent nos. 4 and 5 and the petitioner purchased the land in question by registered sale-deed from the respondent nos. 4 and 5. It is revealed that the name of the respondent no. 3 sold the land in question by registered sale-deed to the respondent nos. 4 and 5 and the petitioner purchased the land in question by registered sale-deed from the respondent nos. 4 and 5. It is revealed that the name of the respondent no. 3 was reflected in the revenue record after the death of his father and, therefore, Entry No. 504 was mutated and when the respondent nos.4 and 5 have purchased the land in question by registered sale-deed, Entry No. 640 came to be mutated in the revenue record based on registered sale-deed on 20.08.1996. Thereafter, the petitioner has purchased the land in question by registered sale-deed on 27.06.2008 and, therefore, Entry No. 950 came to be mutated in the revenue record with regard to the said sale-deed. 12. At this stage, it is pertinent to note that from document, which is placed on record by the respondent authority along with the affidavit-in-reply i.e. copy of Village Form No. 7, it is revealed that the land in question is shown as old tenure land in the revenue record even as on toady. 13. At this stage, the decisions upon which reliance has been placed by learned advocate for the petitioner, are also required to be kept in view. 12.1 In a judgment in case of Bharatbhai Naranbhai Vegda (supra), the Division Bench of this Court, after considering earlier two decisions rendered by the Division Bench of this Court, has held in Para Nos. 20 as under: “20. In any case, as the notice could be said as without jurisdiction on the ground of delay and laches as per the well settled principles of law, we do not propose to express any final view on the aspect of section 75 of the Ordinance. In any case, examining the matter on the either of the situation, the action of issuance of show cause notice can be said to be without jurisdiction and hence, the petitioner would be justified in invoking the jurisdiction of this Court under Article 226 of the Constitution.” 12.2 In a judgment in case of Rameshbhai Ambalal Shah (supra), the Division Bench of this Court has observed in Para No. 17 as under: 17. It is clear from the various judgments of the Hon’ble Supreme Court that where a statute provides any suomotu power of revision without prescribing any period of limitation, the power must be exercised within a reasonable time and what is ‘reasonable time’ has to be determined on the facts of each case. While exercising such power, several factors need to be kept in mind such as effect on rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bonafide transfers, the orders attaining finality under the provisions of other Acts (such as Land Ceiling Act) etc. Even the two judgments of the Supreme Court which have been relied upon by the learned counsel for the appellants explain the same principles of law that a reasonable period would be taken upon the factual circumstances of the concerned case. There cannot be any empirical formula to determine the question. The Court/authority considered the question whether the period is reasonable or not as to take into account surrounding circumstances and the relevant factors to decide that question. In the present case, we find that the original owner i.e. the appellants very consciously entered into a transaction way back in the year 1970 and sold land to respondent No. 1. It is not their case that at the relevant point of time they were mislead by respondent No. 1 herein in any manner or that any fraud was played upon them by respondent No. 1 in entering into the transaction and on their own free will and volition they executed the sale-deed in favour of the respondent No. 1 and accepted the sale consideration. No steps were taken by them for a period of almost 15 years and it is only when the Mamlatdar and ALT, Gandhinagar thought fit to take transaction in suo-motu review that all of a sudden a thought came in the mind of the appellants to say that the transaction was illegal or invalid and now the land should be restored to them as it is. 12.3 In a judgment in case of Valjibhai Jagjivanbhai (supra), the Division Bench of this Court has observed in Para No. 23 as under: “23. 12.3 In a judgment in case of Valjibhai Jagjivanbhai (supra), the Division Bench of this Court has observed in Para No. 23 as under: “23. Looking to the aforesaid different situations, there is no doubt in our mind that even the void transaction under section 9(1) if allowed to remain effective for considerably long period, the authority named therein will be precluded from initiating proceedings to annul it. The ratio laid down by the Apex Court in the decisions cited by Mr. Patel clearly states that even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed to remain for a considerable period and with the passage of time it brings about several changes, creating valuable rights in favour of considerable section of people, it is difficult to accept the proposition that despite the change the Collector would be entitled to exercise power under sub-section (3) of section 9 of the Act. Similar observations can also be made with regard to the land wherein no change is brought about, but number of years have passed after the transfer against the provisions of the Act has taken place. In our opinion when the things have been allowed to remain as such for years together, the purchaser cannot be deprived of his possession so as to render indirect benefit to the seller who was equally responsible for entering into such illegal transaction. Thus, in our view, when the authority had considerable opportunities to know about the transaction and despite that, has not taken any action thereon for years together, such authority cannot be allowed to exercise powers conferred upon it at a belated stage. The concept of reasonableness of time will equally apply in such cases. We, therefore, hold that even powers conferred upon the Collector under sub-sections (2) and (3) of section 9 are required to be exercised within a reasonable time.” 12.4 In a judgment in case of Dudhiben Muljibhai Patel (supra), this Court has observed in Para No. 5 as under: “5. Having considered the facts and the contentions above, it clearly emerges that the Deputy Collector exercised the powers after a long gap of 32 years. Having considered the facts and the contentions above, it clearly emerges that the Deputy Collector exercised the powers after a long gap of 32 years. It is cardinal principle that any statutory power vested in an authority would be required to be discharged within a reasonable time, even if no period is prescribed for such exercise. Inordinate and unreasonable delay is treated as vitiating factor itself. The principle applies with force in respect of the powers exercised or functions discharged by the revenue authorities under the revenue jurisdiction and they are not allowed to upset the action taken long back which may have resulted into vesting of rights and creation of equities with passage of time.” 12.5 In a judgment in case of Ratilal Maganlal Intwala (supra), this Court has observed in Para No. 13 as under: “13. As can be seen from the above decisions relied upon by the counsel for the parties, this Court has, time and again, considered the initiation and exercise of the revisional powers by the Collector in the nature of suo-motu revision under the provisions of the Bombay Land Revenue Code and/or Bombay Land Revenue Rules. Over and above the aforesaid decisions, there are several judgments wherein this Court as well as Hon’ble Apex Court have laid down the ratio that suo-motu revisional power should be exercised within a reasonable period and may be decided considering the facts and circumstances of the case. Such exercise of powers under the provisions of the Bombay Land Revenue Code and/or Bombay Land Revenue Rules, by no stretch of imagination can be extended upto seven years in view of the principles laid down in the aforesaid decisions. There can be no dispute that the Collector can initiate the proceedings within a reasonable time, but in the present case, the Collector has initiated the proceedings after passage of seven years, which cannot be said to be within a reasonable period, considering the facts and circumstances emerging from the record.” 14. Keeping in view the aforesaid decisions rendered by this Court, if the facts of the present case as discussed hereinabove are examined, it can be said that suo motu powers, which were exercised by the respondent authorities after a period of 18 years, are of without jurisdiction and, therefore, the impugned orders are required to be quashed and set aside. 15. 15. Further even on merits, it is required to be observed that as on date, the land in question is shown as old tenure land in Village Form No. 7 produced by the respondent authorities along with the affidavit-in-reply. Therefore, the present petition deserves to be allowed. 16. Therefore, the present petition stands allowed. The impugned order dated 29.08.2017 passed by the respondent-SSRD in Revision Application No. MVV/HKP/AML/50/2015 and the order dated 16.02.2015 passed by the respondent-Collector are hereby quashed and set aside. Rule is made absolute to the aforesaid extend. Direct service is permitted.