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2020 DIGILAW 86 (GUJ)

Somaji Gabhaji Thakor v. State of Gujarat

2020-01-17

A.S.SUPEHIA

body2020
ORDER : 1. Rule. Learned Assistant Government Pleader Mr.Jayswal waives service of notice of Rule on behalf of the respondent State. 2. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing. 3. By the present petition, the petitioners are praying for the following reliefs: “(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside impugned order dated 21.02.2018 passed by the respondent – SSRD in revision application No. MVV/ HKP/ AMD/ 201 of 2017 (at ANNEXURE-G hereto) as well as the order dated 17.07.2017 passed by the respondent – District Collector in L.B. /Revision Application no. 125 of 2016 (at ANNEXURE-E hereto); xxx xxx xxx xxx xxx xxx xxx xxx xxx” 4. The dispute pertains to the land situated at Revenue Survey Nos.98 and 104 of Village Bibipur, Taluka Daskroi, Ahmedabad. The land in question was running in the name of the father of the private respondent, i.e., Raysangji Chandaji. Raysangji Chandaji executed a registered Will on 20.04.1998 bearing Registration No.1264 in favour of the petitioner No.1. Thereafter, Raysangji Chandaji passed away on 21.12.1998 and on 07.03.2000, revenue entry No.914 was mutated in the revenue record on the basis of the said Will and the same was certified don 11.04.2000. Thereafter, petitioner Nos.2 and 4 being family members of the petitioner No.1, their names were entered qua the land in question vide revenue entry No.1071 dated 20.06.2008. 4.1 Private respondents after the delay of more than 14 years challenged the revenue entry No.914 mutated in favour of the petitioner No.1 by preferring RTS Appeal No.213 of 2014. The said RTS Appeal was rejected by the Deputy Collector vide order dated 18.02.2016 and the same was challenged by the private respondents before the District Collector by preferring the Revision Application No. L.B. /Revision Application No.125 of 2016. Thereafter, the private respondents on 23.05.2017 filed a purshis to withdraw the said revision application. The District Collector vide impugned order dated 17.07.2017 permitted the private respondents to withdraw the revision application. Thereafter, the private respondents on 23.05.2017 filed a purshis to withdraw the said revision application. The District Collector vide impugned order dated 17.07.2017 permitted the private respondents to withdraw the revision application. However, at the same time, the District Collector in exercise of suo motu powers, cancelled the revenue entry No.914 and consequent, revenue entry No.1071 by holding that the said revenue entries appear to have been mutated in violation of Section 43 and 32(R) of the Bombay Tenancy and Agricultural Lands Act, 1948 (“the Act”). 4.2 Thereafter, the petitioners preferred the revision Application No. MVV/HKP/AMD/ 201 of 2017 before the respondent – SSRD challenging the said order of the District Collector. The said revision application was rejected vide impugned order dated 21.02.2018 passed by the respondent No.2 – SSRD. 5. Learned advocate Mr.Majmudar appearing for the petitioners has submitted that the powers are exercised by the District Collector after the delay of more than 17 years. He has submitted that the impugned order is bad because of delay and latches and there is no justification for such a huge delay. He has submitted that the revision application was in fact withdrawn by the original applicants and, therefore, the impugned order could not have been passed by the District Collector. 5.1 Learned advocate Mr.Majmudar has submitted that the impugned orders were passed on the basis of wrong assumptions and the respondent No.2 – SSRD as well as the District Collector have not considered the documentary evidences produced by the present petitioners and, therefore, the impugned orders are required to be quashed. 5.2 Learned advocate Mr.Majmudar has submitted that the revenue authorities in entry proceedings cannot hold breach of other enactments. He has submitted that it is not permissible for the District Collector to hold that there is a breach of Section 46 and 32(R) of the Act. He has further submitted that the entry No.914 was mutated in the revenue record on the basis of a Will. He has submitted that the Will in favour of the petitioner No.1 is not in questioned before any competent civil court. 5.3 Learned advocate Mr.Majmudar has further submitted that the Will speaks as on the death of the testator and the succession takes place in accordance with the directions in the Will. He has submitted that the Will in favour of the petitioner No.1 is not in questioned before any competent civil court. 5.3 Learned advocate Mr.Majmudar has further submitted that the Will speaks as on the death of the testator and the succession takes place in accordance with the directions in the Will. It is devolution of interest of deceased by succession in the nominated persons and not transfer of interest of a person in any of the modes of transfer prescribed, which relates to transfer inter vivos. It is an instrument changing the course of devolution of interest by way of inheritance which even otherwise would have taken when the holder dies without a Will by way of intestate succession. Thus, the impugned orders may be quashed and set aside. 5.4 Learned advocate Mr.Majmudar has placed reliance on the judgment of the Supreme Court in the case of Mahadeo (Dead Through Legal Representatives) Vs. Shakuntalabai, reported in 2017 (13) SCC 756 and also the judgment of the Division Bench in the case of Rameshbhai Ambalal Shah Vs. State of Gujarat, reported in 2011 (3) GLH 98 . Thus, he has submitted the impugned orders are required to be set aside. 6. Per contra, learned Assistant Government Pleader Mr.Jayswal has submitted that the impugned order may not be set aside as the petitioners are required to draw premium and for withdrawing the same, the entry was made pursuant to the Will, which was executed on 20.04.1998 and accordingly, when it was found that there was a breach of the provisions of Section 43 and 32(R) of Act, such proceedings were initiated and the matter was taken in rejection by the Collector. Thus, he has submitted that the impugned order may not be quashed and set aside. 7. The facts, which are emerging from the records, are that the land situated at Survey Nos.98 and 104 of Village Bibipur, Taluka Daskroi, Ahmedabad was running in the name of private respondent, i.e., Raysangji Chandaji and he executed a registered Will on 20.04.1998 bearing Registration No.1264 in favour of the petitioner No.1. Thereafter, Raysangji Chandaji passed away on 21.12.1998 and a revenue entry No.914 dated 07.03.2000 was mutated in the revenue record on the basis of the said Will and the same was certified on 11.04.2000. 8. Thereafter, Raysangji Chandaji passed away on 21.12.1998 and a revenue entry No.914 dated 07.03.2000 was mutated in the revenue record on the basis of the said Will and the same was certified on 11.04.2000. 8. Thereafter, being the petitioner Nos.2 and 4, who were the family members of petitioner No.1, their names were entered qua the aforesaid land in question vide revenue entry No.1071 dated 20.06.2008. After a passage of 14 years, the private respondents challenged the revenue entry No.914 mutated in favour of the petitioner No.1 by preferring RTS Appeal No.213 of 2014 and the same was rejected by the Deputy Collector vide order dated 18.02.2016. Being aggrieved, the private respondents challenged the said order before the District Collector by preferring the Revision Application No.125 of 2016, wherein the private respondents filed a purshis for withdrawing the same on 23.05.2017, however, the District Collector vide impugned order dated 17.07.2017 though permitted to withdraw the revision application, simultaneously exercised his suo motu powers by cancelling the revenue entry No.914 and the consequent entry No.1071 by holding that the said revenue entries appeared to have been mutated in violation of Sections 43 and 32(R) of the Act. Subsequently, the revision application was filed by the petitioner before the SSRD which was rejected and the petitioners are challenging the same in the present writ petition. 9. The aforesaid undisputed facts suggest that the respondents had settled the matter and had withdrawn their Revision Application No.125 of 2016 and the District Collector, while observing the suo motu powers vide order dated 17.07.2017, cancelled the revenue entries Nos.914 and 1071, which were made in the years 2000 and 2008 respectively. Thus, unquestionably the suo motu power is exercised by the District Collector after a passage of 17 years from the year 2000 and 9 years from the subsequent entry made in 2008. The entire exercise is undertaken on the premise that the land in question could not have been transferred through a Will. 10. At this stage, it would be pertinent to record the observations of the Supreme Court in the case of Mahadeo (Supra), while examining the provisions of Sections 57 and 43 of the Act. Such transfer of land will not be permissible and restricted by the Section 43 of the Act. 11. The Supreme Court by examining Section 57 of the Act pertaining to Vidarbha Region has held thus: “4. Such transfer of land will not be permissible and restricted by the Section 43 of the Act. 11. The Supreme Court by examining Section 57 of the Act pertaining to Vidarbha Region has held thus: “4. The High Court took the view that the provisions of Section 57 of the Bombay Tenancy and Agricultural Lands Act, 1958 pertaining to Vidarbha Region do not permit the transfer of land by way of a will. Section 57 of the Act which is relevant reads as follows: “57. Restriction on transfers of land purchased or sold under this Act.- (1) No land purchased by a tenant under Section 41 or 46 or 49-A or 57-D or 130 or sold to any person under Section 91 or 122 shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed by the State Government. (2) Any transfer of land in contravention of subsection (1) shall be invalid: Provided that nothing in this section shall apply to the lands purchased by an occupancy tenant.” 5. On a plain reading of the aforesaid provision, it is clear that transfer without the previous sanction of the Collector is impermissible by way of sale, gift, exchange, mortgage, lease or assignment. There is no prohibition insofar as the transfer of land by way of a will is concerned. In fact, in view of the decision of this Court in State of W.B. v. Kailash Chandra Kapur, devolution of property by way of a will does not amount to a transfer of the property. This is clear from para 12 of the aforesaid decision wherein it has been observed that transfer connotes, normally, between two living persons during life. However, a will takes effect after demise of the testator and transfer in that perspective becomes incongruous.” 12. Section 43 of the Act which is parimateria to abstracted Section 57 of the Bombay Tenancy and Agricultural Lands Act, 1958 prescribes restriction on transfers of land purchased or sold under this Act without obtaining previous sanction of the Collector. The same refers as under: “43. Section 43 of the Act which is parimateria to abstracted Section 57 of the Bombay Tenancy and Agricultural Lands Act, 1958 prescribes restriction on transfers of land purchased or sold under this Act without obtaining previous sanction of the Collector. The same refers as under: “43. Restriction on transfers of land purchased or sold under this Act.- [(1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32I, [***], [32U, 43-1D or 88E] or sold to any person under section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall be partitioned without the previous sanction of the Collector.” 13. A perusal of the provision of Section 43 of the Act reveals that no land or any interest purchased by the tenant or sold to any person shall be transferred or shall be agreed by an instrument in writing to be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; no such land or interest, therein shall be partitioned without the previous sanctions of the Collector. A bare perusal of the provision reveal that the same does not prohibit the sale of land by way of Will. Thus, as per the observations made by the Supreme Court in the case of Mahadeo (Supra), in the present case also no previous sanction of Collector was required. 14. As regards the aspect of delay is concerned, indubitably, the action of suo motu revision powers was exercised by the Collector after a period of 17 years for first entry and 9 years from the subsequent entries. The Division Bench in the case of Rameshbhai Ambalal Shah (Supra), while examining the exercise of powers under the Act after considerable delay, has observed thus: “16. The Division Bench in the case of Rameshbhai Ambalal Shah (Supra), while examining the exercise of powers under the Act after considerable delay, has observed thus: “16. It seems to be fairly settled that if a statue does not prescribe the time limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein. Ordinarily, the reasonable period within which power of revision may be exercised would be three years under Section 257 of the Maharashtra Land Revenue Code subject, of course, to the exceptional circumstances in a given case, but surely exercise of revisional power after a lapse of 17 years is not a reasonable time. Invocation of revisional power by the Sub- Divisional Officer under Section 257 of the Maharashtra Land Revenue Code is plainly an abuse of process in the facts and circumstances of the case assuming that the order of Tehsildar passed on March 30, 1976 is flawed and legally not correct. Pertinently, Tukaram Sakharam Shevale, during his lifetime never challenged the legality and correctness of the order of Tehsildar, Shirol although it was passed on March 30, 1976 and he was alive upto 1990. It is not even in the case of Respondent Nos.1 to 5 that Tukaram was not aware of the order dated March 30, 1976. There is no finding by the Sub-Divisional Officer either that order dated March 30, 1976 was obtained fraudulently. 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. 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.” 15. Thus, for the foregoing reasons and analysis, the present petition succeeds. The impugned order dated 21.02.2018 passed by the respondent – SSRD in revision application No. MVV/ HKP/ AMD/ 201 of 2017 as well as the order dated 17.07.2017 passed by the respondent – District Collector in L.B. /Revision Application no. Thus, for the foregoing reasons and analysis, the present petition succeeds. The impugned order dated 21.02.2018 passed by the respondent – SSRD in revision application No. MVV/ HKP/ AMD/ 201 of 2017 as well as the order dated 17.07.2017 passed by the respondent – District Collector in L.B. /Revision Application no. 125 of 2016 are hereby quashed and set aside. Rule made absolute. 16. As a sequel, Civil Application would not survive and hence, disposed of accordingly.