Manoharsinh Mahobbatsinh Sodha v. Special Secretary
2019-09-17
V.M.PANCHOLI
body2019
DigiLaw.ai
JUDGMENT : V.M. Pancholi, J. 1. Rule. Mr. K.M. Antani, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondent Nos. 1 and 2. Though served, none appears on behalf of respondent Nos. 3 to 5. 2. Looking to the issue involved in the present petitions and with the joint request of the learned advocates appearing for the parties, these petitions are taken up for final disposal. Since the issue involved in both the petitions is similar, they are heard together and decided finally by this common order. For the sake of convenience, the facts of Special Civil Application No. 21678 of 2016 are referred. 3. This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has prayed that the order dated 01.03.2016 passed by respondent No. 1 in MVV/HKP/Kutch/4 of 2014 as well as order dated 20/22.02.2013 passed by the District Collector, Kutch, in Suo motu/Sankalan/Appeal/108(6) Case No. 74 of 2012 be quashed and set aside. 4. Mr. Vimal A. Purohit, learned advocate for the petitioner, mainly submitted that the dispute is with regard to Entry Nos. 44, 401, 520 and 707 mutated in the revenue record of Village Reladi Moti, Taluka Bhuj, District Kutch, with respect to survey No. 64 admeasuring 4 Hector, 63 Are and 67 Sq. meters. It is further submitted that Entry No. 401 was mutated in the revenue record on 02.04.1990, which is certified on 16.06.1990. The said entry is with respect to the registered Sale Deed executed between Rabari Kana Gagoo (Purchaser) and Devraj Vira Govind (Seller) on 22.03.1990 and, thereafter, Entry No. 550 was mutated with respect to death of Rabari Kana Gagoo and names of his legal heirs were mutated in the revenue record on 25.01.1993. It is further submitted that the petitioner is a bonafide purchaser, who has purchased the land in question after making full payment of consideration by a registered Sale Deed executed on 01.08.1996. It is submitted that Entry No. 707 was mutated on 20.08.1996, which reflects the name of Manoharsinh Mahobatsinh Sodha, since minor, through his legal guardian i.e. mother Indraba Mahobatsinh Sodha. The said entry was certified on 06.11.1996. 4.1. At this stage, Mr. Vimal A. Purohit, learned advocate for the petitioner, further submits that the Deputy Collector has adjudicated the case with respect to Survey No. 64 whereby the entries were confirmed. 4.2.
The said entry was certified on 06.11.1996. 4.1. At this stage, Mr. Vimal A. Purohit, learned advocate for the petitioner, further submits that the Deputy Collector has adjudicated the case with respect to Survey No. 64 whereby the entries were confirmed. 4.2. Thereafter, the suo-motu proceedings came to be initiated by the Collector while exercising powers under Rule 108(6) of the Gujarat land Revenue Rules, 1972 ("the Rules" for short), pursuant to which, Show-cause Notice dated 14.08.2012 came to be issued. The petitioner filed reply on 26.09.2012 wherein it was specifically pointed out that suo-motu powers are exercised after a gross delay and, therefore, the Show-cause Notice be withdrawn. It is submitted that without considering the said important aspect, the Collector passed impugned order dated 22.02.2013 and held that old Survey No. 130 of Village Reladi Moti, Taluka Bhuj, District Kutch was originally admeasuring 4 Acres and 33 Gunthas. However, at the time of giving effect in the revenue record, while mutating Entry No. 44, old Survey No. 130 is shown as 14 Acres and 33 Gunthas and new Survey No. 64 is shown as admeasuring 11 Acres and 14 Gunthas. Thereafter, the Collector cancelled Entry Nos. 44, 401, 520 and 707 entered into the revenue record with regard to the survey number in question. It is further submitted that the Collector, by way of the said impugned order, held that the land in question is to be vested in the Government. 4.3. It is submitted by the learned advocate for the petitioner that the said order is challenged by filing a Revision Application before the respondent Special Secretary, Revenue Department (Appeals) ('SSRD' for short). However, the said Revision Application is rejected and, therefore, the present petition is filed. 4.4. Mr. Vimal A. Purohit, learned advocate for the petitioner, has assailed the aforesaid impugned orders mainly on the ground that the respondent Collector has exercised suo-motu powers after a period of approximately twenty years and, therefore, on that ground alone, the impugned orders passed by the respondent authorities be set aside. 4.5. It is further submitted that the petitioner is a bonafide purchaser, who has purchased the land after making payment of consideration to the original owner and after verifying the revenue record, in which, the land in question is shown as old tenure land and measurement is also shown.
4.5. It is further submitted that the petitioner is a bonafide purchaser, who has purchased the land after making payment of consideration to the original owner and after verifying the revenue record, in which, the land in question is shown as old tenure land and measurement is also shown. Learned advocate has referred Page-54 of the compilation i.e. extract of Village Form No. 7/12 with regard to the land in question. At this stage, it is further submitted that process of promulgation is to be carried out after a period of every ten years and at no stage, the alleged correction in the measurement was found by the revenue authority and, therefore, when the petitioner has purchased the land in question by registered Sale Deed and after verification of the revenue record, the respondent authority ought not to have passed the impugned orders. 4.6. Learned advocate would further submit that even while adjudicating entry proceedings, the respondent Collector ought not to have directed that the land in question is to be vested in the Government. Thus, the Collector has exceeded his jurisdiction while exercising powers under the Gujarat Land Revenue Code, 1879 ("the Code" for short). It is also contended that procedure prescribed under Section 37 of the Code has not been followed before passing the order of vesting the land in the Government. Thus, the impugned orders be set aside. 5. Learned Assistant Government Pleader, on the other hand, submits that no error is committed by the respondent Collector while exercising suo-motu powers under the Code when the illegality is noticed by the Collector and, therefore, merely the powers are exercised after approximately twenty years, is not a ground to set aside the order of the Collector. 5.1. Learned Assistant Government Pleader has further submitted that no error is committed by the respondent authorities while passing the impugned orders and, therefore, these petitions may not be entertained. 6. This Court has considered the submissions canvassed by the learned advocates appearing for the parties. This Court has also perused the material placed on record. It is not in dispute that the petitioner is a bonafide purchaser, who has purchased the land in question by way of registered Sale Deed from the original land owner. At that time, the petitioner has verified the revenue record wherein survey number as well as the measurement of the land in question are referred.
It is not in dispute that the petitioner is a bonafide purchaser, who has purchased the land in question by way of registered Sale Deed from the original land owner. At that time, the petitioner has verified the revenue record wherein survey number as well as the measurement of the land in question are referred. Entry No. 44 is mutated in the revenue record in the year 1959. Entry No. 401 is also mutated in the year 1990. Thereafter, Entry Nos. 520 and 707 were also mutated in the revenue record with regard to the land in question. The respondent Collector initiated suo-motu proceedings by issuing Show-cause Notice to the petitioner after approximately twenty years. The Collector has not stated anything in the impugned order that who has made correction in the revenue record and no criminal complaint is filed for the alleged correction for the measurement of the land in question. It is also required to be noted that process of promulgation is to be carried out after prescribed time and the revenue record is to be verified. However, after a period of approximately twenty years, suo-motu proceedings are initiated. It is well settled that suo-motu powers can be exercised within reasonable time. In the present case, when there is a gross delay of approximately twenty years in initiating the said proceedings, the impugned orders are required to be set aside on the said ground. 7. It is also required to be noted that while passing the impugned order, the Collector has held that the land in question is to be vested in the Government. At this stage, Show-cause Notice dated 14.08.2012 issued by the Collector to the petitioner is required to be referred to. Copy of the said Show-cause Notice is produced at Page-35 of the compilation. By way of the said Show-cause Notice, the petitioner was asked to show cause as to why the entry certified for the land in question shall not be cancelled. There is no reference in the said Show-cause Notice with regard to calling upon the petitioner to show cause as to why the land is to be vested in the Government.
By way of the said Show-cause Notice, the petitioner was asked to show cause as to why the entry certified for the land in question shall not be cancelled. There is no reference in the said Show-cause Notice with regard to calling upon the petitioner to show cause as to why the land is to be vested in the Government. Now, if the impugned order passed by the Collector is carefully examined, it is clear that while cancelling the entries in question, the Collector has further passed an order, by which, the land in question is ordered to be vested in the Government. Thus, the impugned order passed by the respondent Collector is beyond the Show-cause Notice and the said order is confirmed by the SSRD. Thus, on this ground also, the impugned orders are required to be quashed and set aside. 8. In view of the aforesaid discussion, the impugned orders dated 01.03.2016 passed by the Special Secretary, Revenue Department (Appeals) and 20/22.02.2013 passed by the Collector, in both the petitions, are set aside. The petitions are accordingly allowed. Rule is made absolute, in the petitions, to the aforesaid extent.