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2022 DIGILAW 1549 (GUJ)

Prahladbhai Dahyabhai Soni v. State Of Gujarat

2022-11-10

A.Y.KOGJE

body2022
JUDGMENT : 1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent Nos.1 and 2. 2. This petition under Article-226 of the Constitution of India is filed challenging the order of the Secretary, Revenue Department (Appeals) dated 09/19.02.2018 in Revision Application No.59 of 2016. By the aforesaid order, the Secretary had confirmed the order of the District Collector, Banaskantha in Suo-Motu/Revision Case No.343 of 2015. 3. The issue pertains to Revenue Entry No.560 dated 15-01-1984, which was called in Suo-Motu Revision in exercise of powers under Rule- 108(6) of the Gujarat Land Revenue Rules. 4. Learned Advocate for the petitioners, at the outset, has raised contention of gross delay in issuing Show Cause Notice in the year 2015 in connection with Entry No.560, which was posted in the year 1984. Show Cause Notice had called upon the petitioners to answer that aforesaid entry was posted illegally on the basis of Sale-deed in connection with an agricultural land, where the petitioners were not agriculturist. 5. Learned Advocate for the petitioners also submitted that Entry in question No.560 was made after following due procedure like recording of statement of the concerned persons after issuing notices under Section-135(D) and was thereafter certified. In the said Entry, owner and occupier of Survey No.207 of Village-Dharisana, Taluka-Deesa had applied for entering the name of his real brothers as co-owners and co-occupiers of the aforesaid land. This Entry was questioned in the Show Cause Notice on the ground that Survey No.207 was an agricultural land, which was self-acquired by the eldest brother of the petitioners namely Ishwarlal Dahyalal Soni and therefore, the petitioners, who were not agriculturists, their name could not have mutated. 6. Learned Advocate for the petitioners further submitted that pursuant to Show Cause Notice, when reply came to be filed, the Collector passed an order against the petitioners, wherein the order passed was beyond the scope of Show Cause Notice as the directions were issued to cancel the certificate of agriculturist, if any, is issued in favour of the petitioners anywhere in Gujarat. 7. 7. Learned Advocate for the petitioners step by step took this Court through the Revenue record, which would indicate that eldest brother of the petitioners namely Ishwarlal Dahyalal Soni, who is the respondent No.4 herein, his name was entered at the time of promulgation in the year 1964, recording him to be agriculturist in connection with Survey No.209 of Village-Dharisana. It is submitted that in the year 1981, said Ishwarlal Dahyalal Soni purchased Survey No.207 of Village-Dharisana by registered Sale-deed from the original owner – Mohanji Lakhaji, for which Entry was posted vide Entry No.454 and was also certified in the year 1981. It is thereafter, on account of the fact that the respondent No.4-Ishwarlal Dahyalal Soni being eldest brother in the family, at the time of promulgation, his name was entered in the ancestral land and therefore, had applied for including names of the petitioners, as his real brothers, who were also naturally agriculturist. 8. Learned Advocate for the petitioners submitted that though it was not dispute that land bearing Survey No.209 was ancestral land and nobody had questioned the status of the agricultural land being Survey No.209 as ancestral land, as a result of which, the petitioners, who were real brothers of said Ishwarlal Dahyalal Soni, are also required to be treated as agriculturists. The Collector has proceeded to conclude erroneously, as if the land bearing Survey No.207 is not ancestral land, but self-acquired land. It is submitted that such finding was beyond the scope of the Collector as status of the land being ancestral or self-acquired has not been questioned by anybody. 9. Learned Advocate for the petitioners has relied upon the decision of this Court in support of his submission that the action of issuing impugned Show Cause Notice, was not within reasonable period and therefore, Show Cause Notice and consequential action are required to be set aside. Learned Advocate for the petitioners has also relied upon the decision of the Apex Court in case of Santoshkumar Shivgonda Patil & others v/s. Balasaheb Tukaram Shevale and others reported in (2009) 9 SCC 352 to submit that even where statute does not prescribe the time limit, exercise of revisional power must be within reasonable period, whereas in the present case, statute provides for exercise of revisional powers within period of 60 days. Learned Advocate for the petitioners has relied upon decision of this Court in case of Yogesh Navinchandra Ravani Versus Rajiben Jenaji passed in Special Civil Application No.10602 of 2021 dated 22-11-2021 to contend that revisional power, which was exercised beyond period of limitation, is required to be treated as having been exercised without jurisdiction. 10. As against this, learned AGP has opposed the petition by submitting that the Revenue Entry at the time of promulgation was in connection with Revenue Survey No.207 of Village-Dharisana, whereas impugned Entry No.560 is in connection with Revenue Survey No.207 and as Revenue Survey No.207 was on the basis of Sale-deed in favour of Ishwarlal Dahyalal Soni, who was an agriculturist on account of holding an agricultural land being Survey No.209, whereas the petitioners though, they may be brothers, they are not holding any agricultural land and therefore, agricultural land, which was transacted on the basis of Sale-deed in favour of Ishwarlal Dahyalal Soni, can be termed to be transaction with an agriculturist, whereas after such transaction was concluded, entry of the names of the petitioners in the Revenue record, cannot be supported. As at the relevant time, nowhere names of the petitioners were reflected as an agriculturists and therefore, the proceedings were justified. 11. As against this, in rejoinder, learned Advocate for the petitioners submitted that the respondent –Authority has exceeded their powers as the Show Cause Notice was issued by invoking Rule-108(6) of the Gujarat Land Revenue Rules, which does not empower the Authority to decide the status whether the petitioners are agriculturists or not. Such a power is reserved under Section-70(A). It is also submitted that the State Government itself has issued Circular dated 15-03-1996, which provides for taking care of situation where in the earlier times, names of the eldest son of the family is entered in the Revenue record of the property received under succession, so that rights of the other siblings in the ancestral property, is not affected. 12. Having considered the rival submissions of the parties and having perused the documents on record, it appears that at Annexure-A is Entry No.23 pertaining to Survey No.209 of Village-Dharisana, which was on the basis of promulgation, which took place on 17-06-1964, wherein name of Ishwarlal Dahyalal Soni (respondent No.4), now represented by his legal heirs and elder brother of the petitioners, was entered from time of Jagirdar. 13. 13. Learned Advocate has already submitted that dispute is only with the respondent Nos.1 and 2, whereas the respondent Nos.3,4,5 and 6, who are legal heirs of Ishwarlal Dahyalal Soni, are supporting the case of the petitioners. It appears that by Entry No.454 (Annexure-B), which was posted on 02-02-1981 on the basis of registered Sale-deed in favour of Ishwarlal Dahyalal Soni with regard to Survey No.207 of Village- Dharisana, which was also certified. 14. The entry in question being Entry No.560 was made on the basis of rights of all the brothers in the land so purchased by their eldest brother-Ishwarlal Dahyalal Soni being Survey No.207. On the basis of such application, it appears that notice under Section-135(D) was issued and the statements were recorded. Nature of statements would go on to indicate that though name of Ishwarlal Dahyalal Soni was entered in the Revenue Record pertaining to Survey No.209, but it was understood that other brothers (petitioners herein) had also rights in the said ancestral land bearing Survey No.209. Therefore, considering what is provided under Circular dated 15-03-1996, the petitioners were also agriculturists, even when subsequent purchase was made of Survey No.207 by Sale-deed in the name of eldest brother -Ishwarlal Dahyalal Soni. 15. It would be pertinent to observe that Entry was certified on 17-02-1984 and thereafter also, with regard to Survey No.207, time and again, Entries have been made from the year 1996 to 2000 in the form of succession, removal of encumbrance and also for lifting of rights of certain members of the family and therefore, for all these years, Revenue Authorities were aware of the impugned Entry No.560, which was made in the year 1984. Despite the aforesaid position, it appears that on account of application of third person, Show Cause Notice has been issued on 26-11-2015 for cancelling Entry No.560 dated 15-01- 1984, which is almost 31 years after Entry was certified. Decision of this Court in case of Shah Kamleshkumar Ramanlal Versus Mamlatdar and ALT passed in Special Civil Application No.8811 of 2015 dated 14-12-2018, this Court has elaborately discussed the law on the point of delay and has held in Para-9 as under: “9. There are plethora of decisions by now of the Supreme Court as well as this High Court that the powers under Section-84(C) of the Act should be exercised within a reasonable period of time. There are plethora of decisions by now of the Supreme Court as well as this High Court that the powers under Section-84(C) of the Act should be exercised within a reasonable period of time. It becomes clear from the language of the statutory provision that any invalid transaction will have to be decided or declared invalid. It would thus mean that an invalid transaction per se may be invalid but it will not be invalid unless it is decided or declared to be so. It has to be invalidated. It thus becomes clear that an invalid transaction is made equivalent to a voidable transaction and not a void transaction. It is a trite principle of law to say that a voidable transaction remains valid till it is avoided, annulled or invalidated. Even at the cost of repetition, in order to annul, avoid or invalidate a voidable transaction, powers for the purpose will have to be exercised within reasonable time. Despite the law being well-settled, the revenue authorities keep on committing the same mistake giving rise to unnecessary litigation. This litigation could have been easily avoided with little application of mind as regards the settled position of law. Sometimes it gives an impression that the action has been initiated for some oblique motive or extraneous consideration. Its high time that the State Government takes due care to ensure that the illegal action on the part of the authorities do not lead to unnecessary litigation. The State Government should seriously ponder over this issue. Its high time that the State Government evolves some mechanism or policy, by which the litigation in the courts of law is curbed or curtailed. Almost in 50% of the overall litigation in the State, the Government must be the litigating party. In such circumstances, it is the duty of the State Government to ensure that their illegal action should not drag a litigant to an unnecessary prolonged litigation.” 16. This Court in case of Ratilal Maganlal Intwala Since Decd. Through Heirs & Others v/s. Special Secretary (Appeal) & Others reported in 2013 (3) GLR 2520 has held in connection with exercise of Suo-Motu Revision under Rule-108(6) of the Gujarat Land Revenue Rules, 1972 after period of 7 years to be not within a reasonable period. 17. This Court in case of Ratilal Maganlal Intwala Since Decd. Through Heirs & Others v/s. Special Secretary (Appeal) & Others reported in 2013 (3) GLR 2520 has held in connection with exercise of Suo-Motu Revision under Rule-108(6) of the Gujarat Land Revenue Rules, 1972 after period of 7 years to be not within a reasonable period. 17. The Court is of the view that action initiated by Show Cause Notice is not within the prescribed period by the statute, but also not within reasonable period and hence, Show Cause Notice itself and consequential action deserve to be quashed and set aside on the ground of delay. Even on merits, as observed in the preceding paras, there is no doubt in the mind of the Court that the petitioners were also agriculturists as their elder brother name was entered in the Revenue Record in connection with agricultural land being Survey No.209 and their status as agriculturists, has continued and thereafter, even at the time of purchase/Sale-deed of Survey No.207 of Village-Dharisana. 18. In the opinion of the Court, whether the property is ancestral property or self-acquired property, is a question in itself, which would decide Civil rights of the parties concerned, when there was no such question raised by either of the parties, it was not open for the Collector to hold conclusively that purchase of Survey No.207 of Village-Dharisana by Ishwarlal Dahyalal Soni, is to be treated as property, which is selfacquired property and brothers would not have any rights in such property. 19. In view of the aforesaid reasoning, the impugned order of the Secretary, Revenue Department (Appeals), Ahmedabad, dated 09/19.02.2018 in Revision Application No.59 of 2016, order dated 07-05-2016 of the District Collector, Banaskantha in Suo-Motu/Revision Case No.343 of 2015 and Show Cause Notice dated 26-11-2015 issued by the District Collector, Banaskantha are ordered to be quashed and set aside. The petition stands allowed. Rule is made absolute to the aforesaid extent with no order as to costs.