Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 1065 (GUJ)

Patel Niralbhai Damodarbhai v. State Of Gujarat

2024-04-30

NIRZAR S.DESAI

body2024
JUDGMENT : 1. By way of this petition, the petitioner has challenged the order dated 30.10.2017 passed by the learned Special Secretary [Dispute] (Revenue Department), Gujarat, Ahmedabad in Revision Application No. Mavivi/Bakhap/Amad/45/2016 as well as the order passed by the learned Collector dated 29.08.2016 in proceedings No. Sibi/Jamin-2/N.A./Ambali/S.R. No.2233/2015/135714. The petitioner has further prayed for a direction to the Collector, Ahmedabad to grant NA permission immediately to the petitioner in accordance with provision of Section 65 of Bombay Land Revenue Code. 2. In this petition, notice was issue on 25.01.2018, and thereafter, vide order dated 04.04.2018, rule was issued and hence the matter was listed for final hearing. 3. Heard learned senior advocate Mr. Anshin Desai for the petitioner assisted by learned advocate Ms. Renu Nanavati and learned AGP Mr. Nikunj Kanara for the respondents. 4. The brief facts giving rise to the present petition as stated in the petition are as under:- 4.1 The petitioner had purchased the agricultural land bearing block No.231 (old survey No.110/3/B) from the original land owners by registered sale deed dated 20.10.2006. In respect of the aforesaid revenue entry No.3630 was mutated in the name of petitioners and the same was certified on 27.04.2007 and since then land bearing block No.231 is running in the name of petitioners. According to the petitioners, even the possession of the land in question is also with the petitioners and there is no dispute regarding sale transaction, revenue entry or possession between the land owners and the present petitioners. 4.2 According to the petitioners, originally the sale deed in respect of land bearing block No.231 was in respect of area admeasuring as 0 acre 14 guntha but in re- survey the said land was shown as 0 acre 13 guntha as there was some deduction upon finalization of TP Scheme, and therefore, final plot No.73 admeasuring 921 sq. meters was allotted to the petitioners and since then they are in legal possession of the said final plot. meters was allotted to the petitioners and since then they are in legal possession of the said final plot. 4.3 In the year 2015 on 20.10.2015, the petitioners preferred an application for conversion of land from agricultural to non agricultural purpose and all the concerned departments had given positive opinions including the Mamlatdar (Tenancy) and Deputy Collector (Land Reforms) and despite that the learned Collector, vide order dated 20.02.2016, rejected the petitioner’s application for NA permission on the ground that order regarding revenue entry No. 1265 is found to be improper. 5. Being aggrieved by the aforesaid, the petitioners preferred a Review Application before learned Collector on 05.05.2016 and ultimately, the Collector vide its order dated 29.08.2016, dismissed the Review Application preferred by the petitioner on the ground that name of tenant Jivabhai Lallubhai name is deleted vide entry No.1265 by the Mamlatdar and ALT, and as entry No.1265 was mutated on 12.09.1966. As per the Revenue Record the said tenant Jivabhai Lallubhai seems to have cultivated the land by “reet-4” from 1951-52 to 1957-57, “reet-3 from 1957-58 to 1970-71 and he was cultivating the land from 1971 to 1972 and 2002-04 to 2005 and his name was recorded as protected tenant as secondary right in the column of secondary right vide entry No.676 dated 16.03.1948, and therefore, in absence of there being any dispute between tenant Jivabhai Lallubhai and owner of the land Kankuben @ Madhukanta Shantabhai, the Mamlatdar and ALT has at relevant point of time has committed an error by deleting the name of Jivabhai Lallubhai as protected tenant, and therefore, in view of the aforesaid error committed, in the order dated 26.04.1961, the Revenue Entry No.1265 was mutated on 12.09.1966. The aforesaid order dated 26.04.1961 seems to be an erroneous order, and therefore, the same was required to be reviewed by the Deputy Collector (Land Reforms and Appeal), and therefore, the Review application preferred by the petitioner against the rejection of NA permission was rejected vide order dated 29.08.2016 by the Collector, Ahmedabad. 6. The aforesaid order dated 26.04.1961 seems to be an erroneous order, and therefore, the same was required to be reviewed by the Deputy Collector (Land Reforms and Appeal), and therefore, the Review application preferred by the petitioner against the rejection of NA permission was rejected vide order dated 29.08.2016 by the Collector, Ahmedabad. 6. The petitioner challenged the aforesaid order by preferring a Revision Application before the Special Secretary (Revenue Department Appeals) by way of Revision Application No.Mavivi/Bakhap/Amad/45//2016 and the Secretary, (Revenue Department Appeals) vide its order dated 30.10.2017 rejected the petitioner’s Revision Application holding that Mamlatdar and ALT has committed an error by deleting the name of protected tenant though his name is shown in the second column. As the aforesaid order deleting the name of protected tenant was a nullity the same is required to be taken into revision for which the limitation would not come in the way of Collector, and thereafter, on that ground he rejected the Revision Application preferred by the petitioner. It is against the aforesaid orders dated 29.08.2016 passed by Collector, Ahmedabad and order dated 30.10.2017 passed by SSRD, that this petition is preferred. 7. Learned senior advocate Mr. Desai appearing with learned advocate Ms. Nanavati made following submissions. (i) That the order dated 26.04.1961 on the basis of which entry No.1265 dated 12.09.1966 was mutated is not challenged by any of the interested parties. The aforesaid order has become final and on the basis of aforesaid order the land has changed hands and the petitioner is the last purchaser in the sequence. Till date, the validity of the order passed on 26.04.1961 was neither challenged by the private parties nor it was taken into revision as provided under Section 76(A) of the Tenancy Act, and therefore, the Collector was not justified in rejecting the petitioner’s application seeking NA permission on the ground that order passed on 26.04.1961 is an erroneous order and the same is required to be taken into review by the Deputy Collector (Land Reforms). (ii) Learned senior advocate Mr. Desai further submitted that the provision of Section 76(A) provides for taking in review the order passed by Mamlatdar and ALT, within a period of 1 year. (ii) Learned senior advocate Mr. Desai further submitted that the provision of Section 76(A) provides for taking in review the order passed by Mamlatdar and ALT, within a period of 1 year. In the instant case the said order was passed in the year 1961, same has not taken under the review within a period of 1 year and not even by the Collector, Ahmedabad as well as Special Secretary have only upon considering that the order passed by Mamlatdar and ALT, in the year 1961 is an erroneous order, have rejected the petitioner’s Revision Application, after a period of 50 years as against the statutory provision of taking the aforesaid order passed by Mamlatdar and ALT. in review within a period of 1 year. (iii) Learned senior advocate Mr. Desai further drew attention of this Court to the communication annexed at page-34 of the petition by learned Deputy Collector, Land Reforms and Appeal, Ahmedabad dated 14.10.2016 whereby the Deputy Collector, Land Reforms and Appeal has categorically stated stated that as per Section 76(A) of the Tenancy Act for testing the legality and validity of an order passed by Mamlatdar and ALT, the limitation for reviewing the aforesaid order is 1 year. In the instant case, the Deputy Collector has passed an order on 26.04.1961, and therefore, he does not have any authority to take the aforesaid order in suo moto revision after 1 year. Learned senior advocate Mr. Desai further submitted that as per the instructions received by him after the impugned order dated 29.08.2016 was passed, no proceedings are initiated by the authority even for reviewing the earlier order dated 26.04.1961, and therefore, if no proceedings are initiated even after further delay of 6 years, the aforesaid ground on which the NA permission was denied to the petitioner would vitiate, and therefore, also the impugned order is required to be quashed and set aside and by quashing the impugned orders, this Court may remand the matter back to Collector, Ahmedabad for fresh consideration of petitioner’s application for NA permission. 8. Learned AGP Mr. Nikunj Kanara vehemently opposed the petition and submitted that the order passed by the Collector as well as confirmed by Special Secretary are absolutely just, legal and proper. 8. Learned AGP Mr. Nikunj Kanara vehemently opposed the petition and submitted that the order passed by the Collector as well as confirmed by Special Secretary are absolutely just, legal and proper. He submitted that in view of the fact that the authority noticed the fact that the order dated 26.04.1961 is an erroneous order, and therefore, the same was required to be reviewed. Upon a query from the Court that whether after the impugned order was passed on 29.08.2016, the authorities have taken any steps in furtherance of the aforesaid order by initiating any proceedings for review/taking suo moto revision of the aforesaid order, learned AGP Mr. Kanara, upon instructions received from Jaideep Patel, Deputy Mamlatdar (Ja.Su), Ahmedabad who is present before this Court with available record, states that even after the order was passed on 29.08.2016 by the Collector and the same was confirmed on 30.10.2017 by the learned Special Secretary, nothing is done in furtherance of the aforesaid order and no proceedings are initiated under Section 76(A) of the Tenancy Act against any of the person who has any interest in the land in question. Upon a further query from this Court to learned AGP Mr. Kanara that whether at any point of time, the aforesaid order was taken into review or not, and whether after 30.10.2017, the date on which SSRD dismissed petitioner’s revision application, whether the Respondents have acted in any manner, in furtherance of above referred two orders dated 29.08.2016 and 30.10.2017. Learned AGP Mr. Kanara upon instructions stated that, there is no order/communication except order/communication/opinion after learned Deputy Collector (L.R. & Appeals) passed an order dated 14.10.2006. The Court raised another query that whether any other proceedings are initiated or are pending in respect of the land in question or not, upon instructions and from perusal of available record, learned AGP Mr. Kanara states that no such pending proceedings could be noticed, and therefore, as on date, there are no proceedings pending against the present petitioner under the provisions of Tenancy Act or any other act. 9. I have heard learned counsel for the parties and perused the record. Kanara states that no such pending proceedings could be noticed, and therefore, as on date, there are no proceedings pending against the present petitioner under the provisions of Tenancy Act or any other act. 9. I have heard learned counsel for the parties and perused the record. Considering the fact that the petitioner has purchased the land in question by way of registered sale deed in the year 2006 and his name is also mutated in the revenue record, the sale of the land in favour of petitioner has never been questioned by initiating any proceedings against the petitioners as stated by learned senior advocate Mr. Desai. 10. Today even Learned AGP Mr. Kanara also upon verifying the available record and upon instructions has stated that no proceedings under Tenancy Act or any other act are pending at present. I have considered the fact that though the order dated 29.08.2016 was passed by the Collector, Ahmedabad on a premise that the entry No.1265 is an erroneous entry whereby the name of protected tenant Jivabhai Lallubhai is deleted, and therefore, the proceedings in respect of order based upon which the entry No.1265 was mutated is required to be taken into review, however, there are subsequent order dated 14.10.2016, the Deputy Collector (and Reform) has categorically opined that no such suo moto revision is possible after lapse of 1 year in view of the provisions of Section 76(A) of the Tenancy Act. I have also considered the fact that thereafter, after the order dated 29.08.2016 the authority has not moved even slightly further in furtherance of initiating the proceedings under Section 76(A) or any other appropriate proceedings under the provisions of Tenancy Act, and therefore, today there are no proceedings pending against the present petitioner. I have also considered the fact that thereafter, after the order dated 29.08.2016 the authority has not moved even slightly further in furtherance of initiating the proceedings under Section 76(A) or any other appropriate proceedings under the provisions of Tenancy Act, and therefore, today there are no proceedings pending against the present petitioner. Considering the fact that the direction was issued to the concerned authority to initiate proceedings in respect of breach of Tenancy Act and more particularly in respect of entry No.1265, however, even almost 8 years thereafter, there are no proceedings initiated by the authority till today, and therefore, in absence of there being initiation of any proceedings by the State against the present petitioner or any other interested person in respect of land in question coupled with the fact that even the Deputy Collector (Land Reforms) also has vide his communication dated 14.10.2016 addressed to Collector, Ahmedabad showing his inability to initiate any proceedings under Section 76(A), the very basis of the order dated 29.08.2016 would fall, and therefore, both the orders dated 29.08.2016 passed by Collector, Ahmedabad as well as order dated 30.10.2017 passed by Special Secretary, Revenue Department respectively in proceedings of Revision Application No.Mavivi/Bakhap/Amad/45/2016 & Sibi/Jamin-2/N.A./Ambali/S.R. No.2233/2015/135714 would also not survive as no further actions are initiated thereafter. 11. Resultantly, in view of above discussion, both the impugned orders i.e. orders dated 29.08.2016 passed by Collector, Ahmedabad as well as order dated 30.10.2017 passed by Special Secretary, Revenue Department respectively in proceedings of Revision Application No. Mavivi/Bakhap/Amad/45/2016 & Sibi/Jamin-2/N.A./Ambali/S.R. No.2233/2015/135714 are quashed and set aside. The matter is remanded back to the Collector, Ahmedabad for considering the petitioner’s application seeking NA permission afresh in accordance with the provisions of Section 65 of the Act and within the time limit prescribed. 12. With the above observations, the petition is allowed. Rule is made absolute. No order as to costs.