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2020 DIGILAW 217 (GUJ)

Vajiben Shambhubhai Korat v. State Of Gujarat

2020-01-31

A.S.SUPEHIA

body2020
JUDGMENT : 1. Rule. Learned Assistant Government Pleader Mr.Dhawan Jayswal for the respondent Nos.1 to 3 as well as learned advocate Mr.Nikul Soni for the respondent No.5 waive service of notice of Rule on behalf of the respective respondents. 2. By way of the present petition, the petitioner has challenged the order of Special Secretary, Revenue Department (Appeals) (for short “the SSRD”) in Revision Application No.MVV/Jaman/Jundh/99 of 2014 dated 05.08.2017, whereby the SSRD has confirmed the order of the Collector, Junagadh passed in Suo Moto Revision Application No. 25 of 201314 dated 09.09.2014. By the impugned orders, the respondent Nos.1 and 2, under Section 79(A) of the Gujarat Land Revenue Code, 1879(for short “the GLRC”) have confiscated the land in question to the State Government. 3. The brief facts of the case are as under: 3.1 It is the case of the petitioner that agricultural land being Revenue Survey No.72part/ 2, admeasuring 9,207 sq. mtrs. as well as Revenue Survey No.72part/ 3, admeasuring 9,207 sq. mtrs. were granted to the ancestors of the respondent Nos.4 and 5 under the provisions of the Gujarat Agricultural Land Ceiling Act, 1960 (for short “the Ceiling Act”). As per the terms of grant, the lands were new and restricted tenure and it has been laid down therein that the lands cannot be transferred without prior permission of the Collector. Thereafter, the Government by a policy decision on the representations of various agriculturists and agricultural associations, formulated a policy that the lands allotted by the Government on new tenure basis can be converted to old tenure by taking a reasonable price and the restriction of their transfer are permitted. For this purpose, the Government has issued various resolutions and circulars from time to time and under those resolutions, more particularly Government Resolution dated 18.12.2004, has given the powers to the Prant Officer and Mamlatdar to convert the new tenure land into old tenure suo motu. The lands granted to them under the Ceiling Act were converted into old tenure by the Deputy Collector vide order dated 02.11.2004. The order of the Deputy Collector was taken into suo moto review by the Collector and vide his letter No.Land/1/C/5742 dated 19.01.2005, the Collector confirmed the order dated 02.11.2004 passed by the Deputy Collector. Entry to that effect was mutated in the revenue record being Entry No.2054 dated 09.11.2004. The order of the Deputy Collector was taken into suo moto review by the Collector and vide his letter No.Land/1/C/5742 dated 19.01.2005, the Collector confirmed the order dated 02.11.2004 passed by the Deputy Collector. Entry to that effect was mutated in the revenue record being Entry No.2054 dated 09.11.2004. 2.3 After removal of the status of the land as “New Tenure”, the original landlord, Bhurabhai Deshabhai Solanki, passed away and entry dated 20.08.1999 is reflected in the revenue record, whereby his son – Jivan Bhura came into occupation of the land and thus, he became the owner of the land in question. Thereafter, the original landlord, Rupabhai Nathbhai Solanki, as well as Bhurabhai with Jivanbhai Solanki, sold their lands to one Parbat Vadher and Mukesh Bhima Vadher by registered sale deed Nos.483 and 484 dated 25.01.2005. The entry of transfer of rights are affected in the revenue record vide entry Nos.2075 and 2085 respectively. The purchasers, Parbat Vadher and Mukesh Bhima Vadher, sold these lands to Bhura Natha Solanki by a registered sale deed and Bhura Natha Solanki sold the lands to Jeram Thakarshi Dholariya by a registered sale deed. Thereafter, Jeram Thakarshi Dholariya sold this land to the petitioners by a registered sale deed dated 09.02.2012. Entries of transfer of the rights by subsequent purchasers were made in the revenue record being Entry Nos.2368, 2798, 2956 and 3232 respectively. 2.4 After a period of eight(8) years from the first sale of the land by Rupa Natha Solakni and Jivan Bhura Solanki to Parbat Bhima Vadher, the Collector, Junagadh had issued a show-cause notice under Section 211 of the GLRC to show cause as to why an action under Section 79A of the GLRC should not be initiated against the petitioners as the lands were granted under the provisions of the Ceiling Act and without prior permission of the Collector, they were transferred resulting into breach of the provisions of the GLRC. The petitioners as well as the respondents appeared before the Collector in response to the said show-cause notice and opposed the said notice on various grounds such as (i) the Collector has no power to review his own decision, which he confirmed under his letter dated 19.01.2005 by reviewing the decision of the Deputy Collector converting the land from new tenure to old tenure, (ii) the initiation of the proceedings are barred as the show-cause notice is not issued within a reasonable period, (iii) the provisions of the Ceiling Act, stipulates that after the allotment, the lands will be subject to the provisions of the Land Revenue Code, 2011 hence, no action can be initiated for the breach of the Ceiling Act, (iv) when there is a specific provisions under the Ceiling Act for summary eviction under Section 45 of the Ceiling Act, proceedings under the GLRC cannot be initiated. However, the Collector without taking any cognizance of the submissions as well as the case law cited by the petitioners, passed the order dated 09.09.2014, whereby ordered to confiscate the land to the Government. 2.5 The petitioners filed Revision Application No.MVV/Jaman/Jundh/99 of 2014 to the respondent No.1SSRD and during the course of hearing, the petitioners furnished the copies of various judgments showing that the order of the Collector is contrary to the law laid down by this court as well as against the action is the provisions of the GLRC and the Ceiling Act. However, the SSRD rejected the revision application by the order dated 05.08.2017 and confirmed the order of the Collector dated 09.09.2014. 3. Learned advocate Mr.Harivadan Mishra appearing for the petitioners has submitted that the order passed by the authorities below are de hors the settled proposition of law. He has submitted that the initiation of the proceedings after the conversion of the land by the Deputy Collector by the order dated 02.11.2004 are beyond the reasonable period and the Collector should not have taken into suo motu review of the revision application, after a period of eight(8) years as the lands are already converted into the old tenure and, therefore, restriction of grant is no more in question. He has submitted that from 2004 onwards, the lands were transferred to other purchaser and atleast four(4) transactions have taken place and entries to that effect are already made in the revenue record but the authorities, having no knowledge of such transfer, have not taken any step for this breach. He has submitted that the authorities below should have examined the provision of Section 30 of the Ceiling Act. 3.1 In support of his submissions, learned advocate has placed reliance on the judgment rendered by the Apex Court in the case of Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim, (1997) 6 SCC 71 . He has submitted that suo motu powers under Section 84(C) of the Gujarat Tenancy and Agricultural Lands Act, 1948 are to be exercised within a reasonable time. Further, reliance is placed on the judgment of the Coordinate Bench of this court in the case of Rajul Coop. Housing Society Ltd. Vs. State of Gujarat & Ors., 1984 GLH 968 . Thus, he as submitted that such action of the authorities below is required to be set aside. 4. Per contra, learned Assistant Government Pleader Mr.Dhawan Jayswal has submitted that Jivanbhai Bhurabhai made an application to the Deputy Collector for removal of the restrictions for agricultural purpose and by the order dated 02.11.2004, the Deputy Collector removed the restrictions over the lands allotted in “sathni” to Bhurabhai Desabhai and when Bhurabhai Desabhai passed away, his heirship Entry No.1405 was mutated in the records of right. It is submitted that further transactions are also mutated in the records of right and finally, by the registered sale deed dated 05.07.2010, the said land was transferred to Jerambhai Thakarshi Dholariya and Raghav Hari Dholariya. He has further submitted that a proposal was forwarded by the Deputy Collector, Junagadh Division, Junagadh to initiate the proceedings of breach of condition and the order dated 02.11.2004 was passed by the Deputy Collector, Junagadh under Section 211 of the GLRC. He has submitted that on such proposal, the Deputy Collector, Junagadh Division, Junagadh initiated the proceedings by issuing a show-cause notice dated 21.02.2013 to all the concerned parties as the land was transferred for more than five(5) times. He has submitted that on such proposal, the Deputy Collector, Junagadh Division, Junagadh initiated the proceedings by issuing a show-cause notice dated 21.02.2013 to all the concerned parties as the land was transferred for more than five(5) times. He has submitted that ultimately, the authorities concluded that such land was allotted to Bhurabhai Desabhai, father of Jivanbhai Bhurabhai under Section 30 of the Ceiling Act and the Revenue Department in the State Government had issued the directions on 10.05.2001 not to convert the land alloted under Section 30 of the Ceiling Act into any other tenure and hence, there was a breach. The Collector, Junagadh by the order dated 09.09.2014 quashed the order of the Deputy Collector, Junagadh Division, Junagadh dated 02.11.2004. He has submitted that the order of the authority below i.e. Deputy Collector was confirmed by the SSRD. The same cannot be said to be illegal as there is a breach of Section 30 of the Ceiling Act and the said transfer of the land has been done without prior sanction of the Collector, Junagadh. Thus, he has submitted that the impugned orders may not be interfered with. 5. Learned advocate Mr.Nikul Soni for the respondent No.5 has placed reliance on the observations made in page No.36 of the order of the SSRD dated 05.08.2017 and has submitted that he was duped by the petitioners by saying that the land was to be converted to non-Agricultural purpose and no amount is paid to him by the petitioners and by taking benefit of his lack of knowledge, the said land was sold further. Thus, he has submitted that the impugned orders may not be interfered with. 6. Heard the learned advocates for the respective parties. 7. The relevant established facts from the record are that the land bearing revenue survey No.72 paiki/2 of Village Umarala, TalukaDistrict Junagadh admeasuring Acres 0424 Gunthas was alloted to Rupabhai Nathabhai and Vishrambhai Natubhai admeasuring Acres 0211 Gunthas by the order dated 22.11.1986 passed by the Deputy Collector, Junagadh Division, Junagadh. The land admeasuring Acres 0422 Gunthas was declared surplus under the Ceiling Act in Agricultural Land Ceiling Case No.39 of 1976. The entry was mutated on the basis of the order passed by the Deputy Collector, Junagadh Division, Junagadh on 22.11.1986 being Entry No.1085. The land admeasuring Acres 0422 Gunthas was declared surplus under the Ceiling Act in Agricultural Land Ceiling Case No.39 of 1976. The entry was mutated on the basis of the order passed by the Deputy Collector, Junagadh Division, Junagadh on 22.11.1986 being Entry No.1085. Thereafter, an application was made by one Jivanbhai s/o. Bhurabhai Desabhai to the Deputy Collector, Junagadh Devision, Junagadh for removing restrictions for agricultural purpose and the Deputy Collector, Junagadh Division, Junagadh passed the order dated 02.11.2004 removing the restrictions on the land alloted in santhni to Bhurabhai Desabhai. 8. Thereafter, four(4) transactions have taken place and by the said transactions, the said land was transferred to Jerambhai Thakarshi Dholariya and Raghavbhai Haribhai Dholariya by way of a registered sale deed dated 05.07.2010. The Deputy Collector, Junagadh Division, Junagadh initiated the proceedings by issuing the show-cause notice dated 21.02.2013 to all the concerned parties under the provision of Section 211 of the GLRC i.e. after a period of nine(9) years. Thus, such belated exercise of powers require to be annulled. 9. This court has perused the impugned orders passed by the concerned authorities. The order dated 09.09.2014 passed by the District Collector, Junagadh is threadbare perused by this court. The same reveals that the Collector has recorded the findings with regard to the provisions of GLRC and the Ceiling Act, more particularly violation of provisions of Section 30. It is observed by the Collector that initially, the order dated 02.11.2004 passed by the Deputy Collector, Junagadh Division, Junagadh removing restrictions from the land is violative of condition of the Ceiling Act, more particularly Sections 29 and 30 thereof. 10. Thus, the entire exercise carried out by the Collector, Junagadh, while exercising the power under Section 211 of the GLRC for examining the violation of the Ceiling Act is impermissible. It is established that the authorities acting under the GLRC, cannot exercise their powers and examine violation of any other Act. An officer cannot exercise any power under one enactment while proceeding under another enactment. This court, in the case of Evergreen Apartment Cooperative Housing Society Vs. Special Secretary, Revenue Department, Gujarat State, 1991 (1) GLR 113 has observed thus: “12. It is quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. Special Secretary, Revenue Department, Gujarat State, 1991 (1) GLR 113 has observed thus: “12. It is quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by competent authorities under special enactments. Independently the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transaction recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Thus on this second ground also the orders of the Collector and the Additional Chief Secretary appear to be beyond their jurisdiction. The Additional Chief Secretary has held that the sale by auction was not consistent with the provisions of Section 27 of the Urban Land (Ceiling and Regulation) Act. Section 27 relates to prohibition of transfer of any urban land with a building thereon. Apart from the legal position that Section 27 has been struck down as ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in the present case. Thus, the order of the Revisional authority has proceeded on a misconception of relevant legal provisions.” 11. Hence, in view of the aforesaid settled proposition of law, the impugned orders are hereby quashed and set aside. The same are only set aside on the ground of overstepping the powers prescribed under the GLRC. It will be open for the respondent authorities to pass appropriate orders in accordance with law after hearing the petitioners. Rule is made absolute.