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2023 DIGILAW 5 (GUJ)

STATE OF GUJARAT v. JITENDRASINH JAGMALSINH SODHA

2023-01-02

ARAVIND KUMAR, ASHUTOSH J.SHASTRI

body2023
JUDGMENT : ARAVIND KUMAR, J. 1. State as well as petitioners in Special Civil Application No. 21678 of 2016 have preferred these intra-court appeals by questioning the correctness and legality of the order dated 17.09.2019 passed in Special Civil Application No. 21678 of 2016 with Special Civil Application No. 21717 of 2016. BRIEF BACKGROUND OF THE CASE: 2. In respect of property bearing Survey No. 71/2 admeasuring Hectare 1.24.44 sq. mtrs. mutation entry Nos. 35, 38, 569, 604, 1243 and 1337 were made in the name of Jitendrasinh Jagmalsinh Sodha originally. The dispute in the Special Civil Applications is with regard to Entry Nos. 44, 401, 520 and 707 mutated in the revenue records of village Reladi Moti, Taluka Bhuj, District Kutch, in respect of Survey No. 64 admeasuring 4-Hectare 63-Aare and 67 sq. mtrs. Mutation entry No. 401 was made in revenue records on 02.04.1990 which came to be certified on 16.06.1990 based on the Sale Deed executed by Devraj Vira Govind in favour of Rabari Kana Gagoo on 22.03.1990. On the death of Rabari Kana Gagoo, names of his legal heirs were entered into and the revenue records was accordingly mutated on 25.01.1993 and certified on 26.05.1993. 3. Petitioners had purchased the said land under registered Sale Deed dated 08.11.1994. Likewise under registered Sale Deed dated 20.08.1996, Manoharsinh Mahobatsinh Sodha and his mother purchased portion of Survey No. 64 under registered Sale Deed dated 01.08.1996 resulting in revenue records being mutated by mutation entry No. 707 and certified on 06.11.1996. 4. The Collector, Kutch, initiated suo motu proceedings under Rule 108(6) of the Gujarat Land Revenue Rules, 1972 and a show cause notice dated 14.08.2012 came to be issued to the petitioners stating thereunder that the revenue entries made in respect of Survey No. 71/2 namely mutation entry Nos. 35, 38, 569, 604, 1243 and 1337 there is overwriting and has been tampered with. It was also stated that mutation entry No. 38 name of Ayar Jesang Seja through mutation entry Nos. 569 assigned in the name of his brother namely Ganga Seja is done illegally. It was also stated that old Survey No. 46 i.e. new Survey Nos. 71/1 and 71/2 were in the name of Government and as such it was held that revenue entries are illegally made and approved and called upon the writ applicants to show cause why it should not be set aside. It was also stated that old Survey No. 46 i.e. new Survey Nos. 71/1 and 71/2 were in the name of Government and as such it was held that revenue entries are illegally made and approved and called upon the writ applicants to show cause why it should not be set aside. The writ applicants were also restrained by an order of injunction dated 14.08.2012 by 1st respondent whereby the writ applicants were restrained from alienating the land in any manner whatsoever. Said show cause notice was duly replied to by the petitioners. The District Collector by order dated 21.02.2013 cancelled the aforesaid entries and held that the land stood vested with the State Government without any encumbrance. 5. Being aggrieved by the aforesaid order, Revision Application No. 5 of 2014 was filed before the Special Secretary, Revenue Department. The revisional authority has dismissed the revision petition by holding that there are corrections in 7/12 entries and revenue records were mutated without any order or supporting evidence. In other words, order of the District Collector came to be affirmed vide order dated 01.03.2016. Being aggrieved by the said order, Special Civil Application No. 21717 of 2016 came to be filed by the writ applicants Shri Jitendrasinh Jagmalsinh Sodha and Shri Bhupendrasinh Mahobatsinh Sodha. 6. One Mr. Manoharsinh Mahobatsinh Sodha also being aggrieved by the aforesaid order dated 01.03.2016 passed by the Special Secretary, Revenue Department and the order of the District Collector dated 20/22.02.2013 had also filed Special Civil Application No. 21678 of 2016 which petitions have been allowed by a common order dated 17.09.2019. Hence, these two intra-court appeals. 7. State being aggrieved by the order allowing the Special Civil Applications has preferred the Letters Patent Appeal No. 546 of 2021. Whereas the legal heirs of Nagdebai Sonabhai Chavda have preferred Letters Patent Appeal No. 946 of 2021 contending that the appellants are the original owners and occupants of the land bearing Survey No. 823 admeasuring 22-Acres 14-Gunthas of village Paddhar which have been measured as Survey No. 62 admeasuring 11-Acres 22-Gunthas and Survey No. 64 admeasuring 11-Acres and 11-Gunthas of village Moti Reladi and same had been examined on comparison of old and new records and the Deputy Collector by his order dated 31.07.2006 directed to mutate the name of the appellants in the revenue records of Survey No. 62. These appellants are claiming and contending that land in Survey No. 64 of village Moti Reladi is the land bearing old Survey No. 823 and as such they support the order of the Collector setting aside the mutation entry and contend learned Single Judge ought not to have set aside the said orders and it would affect their rights. Hence, they have sought for order of the learned Single Judge being set aside. 8. We have heard the arguments of Shri K.M. Antani, learned Assistant Government Pleader appearing for the appellant State in Letters Patent Appeal No. 546 of 2021, Shri S.K. Patel, learned counsel for the appellants in Letters Patent Appeal No. 946 of 2021, Shri Vimal Purohit, learned counsel appearing for respondent Nos. 1 and 2 in Letters Patent Appeal No. 546 of 2021 and 6th respondent in Letters Patent Appeal No. 946 of 2021. Perused the records. 9. It is the contention of Mr. Antani, learned Assistant Government Pleader appearing for the State that learned Single Judge committed an error in allowing the Special Civil Applications without appreciating the fact that entries which are mutated illegally can be cancelled at any point of time when fraud has been noticed and of course by extending an opportunity to the aggrieved persons which admittedly has been done in the instant case. Hence, he has contended that non-consideration of this vital fact had resulted in an erroneous order being passed. He would submit that learned Single Judge has set aside the order of the Collector only on the ground of delay without appreciating the fact that delay would not come in the way when prima facie entries made were illegal and this would take away the legal right of the State Government and that too when fraud has been perpetrated on the State. Hence, he prays for order of the learned Single Judge being set aside. 10. Shri Vimal Purohit, learned counsel appearing for the 6th respondent would support the orders of the Special Secretary, Revenue Department (SSRD) and the Collector. He would assail the order of the learned Single Judge by contending that when appellants in Letters Patent Appeal No. 946 of 2021 are bona-fide purchasers and in the collateral proceedings it has been held that Survey Nos. He would assail the order of the learned Single Judge by contending that when appellants in Letters Patent Appeal No. 946 of 2021 are bona-fide purchasers and in the collateral proceedings it has been held that Survey Nos. 64 and 823 are one and the same and appellants in Letters Patent Appeal No. 946 of 2021 being bona-fide purchasers of the subject land, the mutation entries which had been erroneously made and set aside by the Collector ought not to have been interfered by the learned Single Judge. Hence, he prays for dismissal of the appeal. In support of his submissions, he has relied upon the following judgments: (i) Mehta Vrajlal Chhaganlal and Others vs. State of Gujarat and Others, Letters Patent Appeal No. 2436 of 2017, dated 09.03.2022 (ii) State of Gujarat vs. Gunvatrai Trambaklal Vadodariya, Letters Patent Appeal No. 69 of 2022, dated 10.03.2022 (iii) State of Gujarat vs. Chandanben Wd/o Jashvantbhai, Letters Patent Appeal No. 607 of 2021, dated 27.09.2021 (iv) Joint Collector Ranga Reddy District vs. D. Narsing Rao and Others, 2015 (3) SCC 695 (v) M/s. Air Contidioning Specialists (Private) Ltd. vs. Union of India, 1996 (2) GLR 448 11. Shri S.K. Patel, learned advocate appearing for appellant in Letters Patent Appeal No. 946 of 2021 would support the arguments canvassed by Mr. Vimal Purohit and contends learned Single Judge ought not to have allowed the Special Civil Applications. He would also contend that there was serious identity crisis of the land of writ applicants and after conducting a detailed enquiry the Deputy Collector, Bhuj by his order dated 31.07.2006 had ordered to mutate the name of the appellants (in Letters Patent Appeal No. 946 of 2021) in respect of Survey No. 62 which was relating to old Survey No. 823. Hence, he prays for Letters Patent Appeal No. 946 of 2021 being allowed. 12. Having heard the learned advocates appearing for the parties and on perusal of records as well as order of the learned Single Judge, it would clearly emerge therefrom that proceedings initiated against writ applicants under Section 108(6) of the Gujarat Land Revenue Rules, was for setting aside the mutation entries made in respect of Survey No. 71/2 namely Mutation Entry Nos. 35, 38, 569, 604, 1243 and 1337 which undisputedly had been carried out way back in the year 1990. 35, 38, 569, 604, 1243 and 1337 which undisputedly had been carried out way back in the year 1990. It is no doubt true that there is no limitation prescribed for exercising the suo motu powers. 13. The Hon’ble Apex Court in the case of State of Gujarat vs. Patel Raghav Natha, (1969) 2 SCC 187 has held that Commissioner exercising the power under Sections 65 and 211 of the Bombay Land Revenue Code, 1879, had not exercised the revisional powers within few months from the date of the order of the Collector and as such it was bad in law. It has been further held: “11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised. 12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the Legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961, i.e. more than a year after the order and it seems to us that this order was passed too late.” 14. In this case the Commissioner set aside the order of the Collector on October 12, 1961, i.e. more than a year after the order and it seems to us that this order was passed too late.” 14. The statutory authorities exercising suo motu powers would be required to exercise the same within a reasonable time and exercise of such powers beyond reasonable time would not justify their act and render the exercise arbitrary. Where a statutory provision for exercise of suo motu power of revision does not prescribe any limitation, it is trite law that such power should be exercised within a reasonable period of time even in case of transaction which can be termed as void transaction. 15. The Hon’ble Apex Court in the case of Joint Collector Ranga Reddy District and Another vs. D. Narsing Rao and Others (supra) had held that exercise of the revisional powers after delay would tantamount to fraud upon statute. It has been further held: “31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority. 32. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. 32. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellant-State to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. In as much as, the notice was issued as late as on 31st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed.” 16. Keeping these authoritative principles in mind when the facts on hand are looked into at the cost of repetition it is to be held that the suo motu power is sought to be exercised by the Collector for setting aside the mutation entries made in the year 1990 by issuing the show cause notice in the year 2012 i.e. on 14.08.2012 i.e. after a period of 22 years. The reason for exercising such suo motu power is on the ground of revenue entries having been made by overwriting. As to when said overwriting was detected or how the subsequent entries were allowed to be made and certified and yet no action was taken is not forthcoming from the said show cause notice. Though it has been stated in the show cause notice that entries were illegally made, as to what is the illegality that had taken place while carrying out such entries is not forthcoming from the show cause notice as well as from the order passed by the Collector on 20.02.2013. Though it has been stated in the show cause notice that entries were illegally made, as to what is the illegality that had taken place while carrying out such entries is not forthcoming from the show cause notice as well as from the order passed by the Collector on 20.02.2013. On the other hand, disputed entries would reflect that land came to be allotted at an undisputed point of time by recognizing the allottee as a tenant. If the records are not forthcoming to prove the grant of tenancy, that by itself would not be a ground on which the entries made in the revenue record would lose its presumptive value nor any inference can be drawn doubting the tenancy. The person who alleges the entries to be bad on account of any illegality having been committed has to necessarily prove the same and in the absence of any proof being led in this regard, the order of the Collector as confirmed by the Special Secretary, Revenue Department, could not have been sustained. Hence, learned Single Judge was correct and justified in setting aside the impugned orders and allowing the Special Civil Applications which cannot be found fault with. We do not find any infirmity either on facts or in law to interfere with the well-reasoned order passed by the learned Single Judge. 17. Mr. S.K. Patel, learned counsel appearing for the appellants in Letters Patent Appeal No. 946 of 2021 has made valiant attempt to defend the order of the Collector as well as the Special Secretary, Revenue Department, who had set aside the mutation entries and confirmed the same by contending that the said land is owned by the appellants and they are lawful owners. The issue of intra-party rights cannot be gone into in Special Civil Applications and at no point of time the appellants in Letters Patent Appeal No. 946 of 2021 had agitated their claim before the revenue authority which had resulted in the impugned orders being passed. However, based on orders passed in collateral proceedings, they have now sought to assail the order of the learned Single Judge and sustain the impugned orders which is impermissible in the present proceedings. However, based on orders passed in collateral proceedings, they have now sought to assail the order of the learned Single Judge and sustain the impugned orders which is impermissible in the present proceedings. It is needless to state that appellants in Letters Patent Appeal No. 946 of 2021 would be at liberty to work out their rights, if any, over the land bearing Survey No. 64 which is said to be part of old Survey No. 823 by initiating appropriate proceedings before the jurisdictional Civil Court and we make it clear that observations made by us hereinabove are restricted or limited only for the purpose of examining the correctness of the order of the learned Single Judge and same would not be construed as an opinion having been expressed with regard to title over the subject property over which appellants in Letters Patent Appeal No. 946 of 2021 are claiming right, title and interest. Hence, contentions of both parties with reference to the title are kept open to be urged in appropriate proceedings before the jurisdictional Civil Court. 18. For the reasons aforestated, we proceed to pass the following: ORDER: (i) Letters Patent Appeal Nos. 546 of 2021 and 946 of 2021 are hereby dismissed. (ii) The order of the learned Single Judge dated 17.09.2019 passed in Special Civil Application Nos. 21678 of 2016 and 21717 of 2016 stands affirmed subject to observations made hereinabove. (iii) No orders as to costs.