Heir And Legal Representative ... vs State Of Gujarat

1. Heard Mr.Mehul Shah, Senior advocate, learned counsel with Mr.Jenil M. Shah, learned advocate for the petitioners and Ms.Vrunda Shah, learned Assistant Government Pleader for the respondents.

C/SCA/7709/2006 JUDGMENT

2. The present petition has been filed under Articles 226 and 227 of the Constitution of India whereby, the petitioners have inter alia prayed for appropriate writ, order or direction for quashing and setting aside the judgment and order passed by the Joint Secretary (Appeals), Revenue Department dated 31.1.2006, the same being illegal and bad in law.

3. The brief facts leading to the filing of the present petition are as under:

3.1 The petitioners' predecessor-in-title, namely, Shri Premjibhai Nagjibhai had purchased the land of Survey No.516 of Village Gariadhar of District Bhavnagar, admeasuring 1 acre 36 gunthas (hereinafter referred to as 'the land in question') in the year 1971. It is the case of the petitioners' that prior to the year 1971, the predecessors-in-title of Shri Premjibhai Nagjibhai, were Shri Nagjibhai Kanjibhai and Shri Devjibhai Kanjibhai (brothers) and were living in a Hindu Undivided Joint Family and were tilling the land of Survey No.71/1 of Jalvadar. The said land was purchased in the name of Shri Devjibhai Kanjibhai in the year 1955 and the relevant entries being entry number 38 dated 3.7.1955 and number 83 dated 15.11.1955 were mutated in the revenue record.

3.2 Apropos the said purchase of land in question, revenue entry number 1783 came to be mutated in the revenue record on 21.3.1971 recording the transaction in favour of the father of the petitioners, viz. Shri Premjibhai Nagjibhai. Subsequently, the said entry number 1783 came to be certified by the Mamlatdar on 2.5.1971.

passed away, as a result whereof, entry number 3572 dated 20.12.1989 came to be mutated in the revenue record recording the heirship whereby, the names of Shri Keshavbhai Premjibhai, Shri Hirabhai Premjibhai, Kashiben Premjibhai, Savitaben Premjibhai and Devkuvar Premjibhai came to be mutated in the revenue record.

3.4 According to the petitioners, the father of the petitioners cultivated the said land of survey number 516 of Village Gariadhar till his death and thereafter, the petitioners namely, Shri Hirabhai Premjibhai and Shri Keshavbhai Premjibhai were cultivating the land till the year 2004. Thus, the aforesaid facts strengthens the aspect that not only the father of the petitioner but ancestors of the petitioners were also cultivating the land since the year 1957 they being the agriculturist.

3.5 Somewhere in the year 1995, the Deputy Collector, Palitana issued a notice dated 10.10.1995 under the provisions of sub-rule (6) of rule 108 of the Gujarat Land Revenue Rules, 1972 (hereafter referred to as 'the Rules of 1972'), inter alia, requiring the petitioners to show cause as to why entry number 1783 dated 21.3.1971 should not be cancelled. The petitioner No.1 on 13.11.1995 replied to the notice dated 10.10.1995 inter alia submitting that the petitioners by birth are agriculturists and their only source of income is agricultural operation since their predecessors and that after a period of 25 years, the entry cannot be cancelled and power, if any, cannot be exercised after such unreasonable delay. It was further pointed out that the joint family of Shri Nagjibhai Kanjibhai and Shri Devjibhai Kanjibhai was having land bearing survey number 77/1, admeasuring 8 acres 6 gunthas in Villag Jalvadar Page 3 of 14 Downloaded on : Sun Feb 16 14:51:49 IST 2020 C/SCA/7709/2006 JUDGMENT and thereafter, Shri Premjibhai Nagjibhai purchased the land in question in the year 1971 when he was an agriculturist. It was pointed out that since the year 1957, joint family was having agricultural operations and was living on the income of agriculture. It was also pointed out that the said transaction of purchase of the land in question was recorded in the revenue record followed by certification of the entry by the Mamlatdar on 2.5.1971.

3.6 The Deputy Collector, Palitana, vide order dated 17.4.1996, cancelled the entry number 1783 dated 2.5.1971 as well as entry number 3572 dated 7.3.1989 on the ground that the father of the petitioners was not an agriculturist. It is further observed that no supporting evidence has been produced to suggest that Shri Premjibhai Nagjibhai was the original account holder or that Shri Premjibhai Nagjibhai has acquired the agriculture land through heirship. The Deputy Collector, Palitana on the basis of the report of Mamlatdar, Gariyadhar concluded that Shri Premjibhai Nagjibhai does not appear to be the account holder of the agriculture land, and ultimately cancelled the entry number 1783 dated 2.5.1971 and entry number 3572 dated 7.5.1989.

3.7 Being aggrieved, the petitioners preferred a revision application before the Collector, Bhavnagar. The Collector, Bhavnagar, vide order dated 3.5.1999, rejected the revision application inter alia observing that the father of the petitioners though was not an agriculturist had purchased the land in question in breach of the provisions of Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands Ordinance, 1949 (hereinafter referred to as 'the Ordinance').

C/SCA/7709/2006 JUDGMENT The Collector, Bhavnagar directed the petitioners to handover the possession of the land in question to the original owner within a period of 15 days, failing which the Deputy Collector was directed to take necessary steps for taking the possession of the land in question and further vesting the same in the State Government.

3.8 Being aggrieved, the petitioners preferred Revision Application No.13 of 1999 before the Additional Chief Secretary (Appeals), Revenue Department. The Joint Secretary (Appeals), Revenue Department, vide order dated 31.1.2006, rejected the revision application and confirmed the order dated 3.5.1999 of the Collector, Bhavnagar.

3.10 Being aggrieved and dissatisfied, the petitioners have filed present writ petition with the aforestated prayers.

4. Mr.Mehul Shah, Senior Advocate, learned counsel with Mr.Jenil Shah, learned advocate for the petitioners, submitted that the notice dated 10.10.1995 issued by the Deputy Collector, Palitana was illegal and bad in law inasmuch as the notice had been issued after a period of 25 years. It is further submitted that the notice issued by the Deputy Collector, Palitana was beyond the reasonable time and thus, as per the settled principles of law, it was not open to the Deputy Collector, Palitana to have issued such notice.

5. It is further submitted that the said issue is covered by catena of decisions, rendered by the Hon'ble Apex Court as well as this court. It is further submitted that the Hon'ble Apex Court, in the case of State of Gujarat vs. Patel Raghav Natha and others, reported in AIR 1969 SC 1297, has held that if the Page 5 of 14 Downloaded on : Sun Feb 16 14:51:49 IST 2020 C/SCA/7709/2006 JUDGMENT statute does not provide any specified time limit, then the action has to be initiated by the authority within a reasonable time and the reasonable time should be one year; and that if the authority has not taken any action within reasonable time, then such action is vitiated by the vice of delay and laches.

6. The learned counsel also placed reliance on the judgment in case of Joint Collector Ranga Reddy District and another vs. D. Narsing Rao and others, reported in (2015) 3 SCC 695 for the proposition that even when there is no period of limitation prescribed for the exercise of any power, revisional or otherwise, such power must be exercised within a reasonable period and that if the power is allowed to be exercised it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties.

7. It is further submitted that the Deputy Collector, Palitana had issued notice under the provisions of the Gujarat Land Revenue Code, 1879 wherein, the Deputy Collector, Palitana had called upon the petitioners to show cause as to why the entry number 1783 dated 21.3.1971 certified on 2.5.1979 and entry number 3572 dated 20.12.1989 should not be cancelled. Thus, it is submitted that the notice issued by the Deputy Collector, Palitana was limited only to cancellation of entry number 1783 dated 21.3.1971 as well as entry number 3572 dated 20.12.1989 and not for the breach or otherwise of the provisions under the Ordinance.

8. It is further submitted that the Deputy Collector, Palitana had, thereafter, cancelled both the entries. While pointing out the caption of the order dated 3.5.1999 (page 57), it is Page 6 of 14 Downloaded on : Sun Feb 16 14:51:49 IST 2020 C/SCA/7709/2006 JUDGMENT submitted that the Collector, Bhavnagar while deciding the revision application filed by the petitioners, has exceeded his jurisdiction inasmuch as the Collector, Bhavnagar determined the breach of the provisions of section 54 of the Ordinance which was never the subject matter of the notice dated 10.10.1995 issued by the Deputy Collector, Palitana. It is submitted that the order passed by the Collector, Bhavnagar dated 3.5.1999 is without any authority of law inasmuch as, the Deputy Collector, Palitana had exercised the powers under the provisions of the Gujarat Land Revenue Code, 1879 whereas, the order has been passed by the Collector, Bhavnagar determining the breach of the provisions under the Ordinance. It is submitted that the said issue is also covered by the judgment of this Court in the case of Evergreen Cooperative Housing Society vs. Special Secretary, Revenue Department, Gujarat State, reported in 1991 (1) GLR 113. It is further submitted that this court has held that if power is conferred on the officer under one enactment, it cannot be exercised while dealing with the question under another enactment, especially when the revenue officers are empowered to act under various enactments.

9. It is submitted that, the orders passed by the Deputy Collector, Palitana as well as the Collector, Bhavnagar are vitiated on the ground that the same suffer from the violation of principles of natural justice, considering the fact, that the order passed by the Deputy Collector, Palitana was based on the report dated 31.7.1995 of the Mamlatdar, copy whereof was neither disclosed nor furnished to the petitioners. Under the circumstances, the orders passed by the Deputy Collector, Palitana and confirmed by the Collector, Bhavnagar, are in Page 7 of 14 Downloaded on : Sun Feb 16 14:51:49 IST 2020 C/SCA/7709/2006 JUDGMENT violation of principles of natural justice. Hence, it is submitted that the order dated 17.4.1996 as well as the order dated 3.5.1999 passed by the Deputy Collector, Palitana and Collector, Bhavnagar respectively, deserve to be quashed and set aside.

10. Learned counsel further submitted that the authorities below, were exercising the suo motu powers under the provisions of the Gujarat Land Revenue Code, 1879 read with the Rules of 1972 and thus, it was not open to both the authorities to have decided the validity or otherwise of the transaction under the Ordinance.

11. It is further submitted that the order dated 3.5.1999 passed by the Collector, Bhavnagar also suffers from the vice of non-application of mind inasmuch as, Section 75 of the Ordinance was not at all applicable to the facts of the present case.

12. While adverting to the merits of the case, it is submitted that the authorities below have failed to appreciate that not only the ancestors of the petitioners, but the petitioners were also tilling the land in question. The said aspect has been categorically reflected in Village Form No.7/12 for the years 1983-84 till 2003-04 produced on the record of the proceedings before the authorities. It is submitted that the authorities below viz. the Deputy Collector, Palitana and the Collector, Bhavnagar did not properly appreciate the documentary evidence produced on behalf of the petitioners and held that Shri Premjibhai Nagjibhai i.e. the father of the petitioners was not an agriculturist. Hence, it is submitted that the orders passed by all the authorities deserve to be quashed Page 8 of 14 Downloaded on : Sun Feb 16 14:51:49 IST 2020 C/SCA/7709/2006 JUDGMENT and set aside.

13. Per contra, Ms.Vrunda Shah, learned Assistant Government Pleader, while supporting the orders passed by the Deputy Collector, Palitana, Collector, Bhavnagar and the Joint Secretary (Appeals), Revenue Department, submitted that the orders are legal and valid for, the petitioners have not been able to substantiate that the father of the petitioners was an agriculturist or that has acquired the land in question by way of succession from his ancestors. It is further submitted that it was very much permissible to the Deputy Collector, Palitana to have exercised powers under the provisions of sub- rule (6) of rule 108 of the Rules of 1972 and that the Deputy Collector, Palitana having rightly exercised the powers, no error can be said to have been committed by the Deputy Collector, Palitana in passing the order dated 17.4.1996 cancelling the entry number 1783 as well as entry number 3572. It is further submitted that since the petitioners were not able to justify their status of being an agriculturists either by producing any relevant record or otherwise the Deputy Collector, Palitana had come to the conclusion that the petitioners have failed to prove that either the predecessor-in- title or the petitioners were an agriculturists. While adverting to the order passed by the Collector, Bhavnagar it is submitted that the Collector, Bhavnagar was also well within his power to determine as to whether there was any breach committed by the person holding the land under the provisions of the Ordinance and that the Collector, Bhavnagar was empowered to take action under the provisions of the Ordinance. It is further submitted that thus, it cannot be said that the Collector, Bhavnagar committed any error in passing the order, Page 9 of 14 Downloaded on : Sun Feb 16 14:51:49 IST 2020 C/SCA/7709/2006 JUDGMENT directing the petitioners to handover the possession of the land in question to the original owner, failing which the Deputy Collector, Palitana was directed to take necessary steps for taking over the possession and consequent vesting of land in question in the State Government.

14. While referring to the order passed by the Joint Secretary (Appeals), Revenue Department, it is submitted that after considering the written as well as oral submissions of the petitioners, the Joint Secretary (Appeals), Revenue Department has come to the conclusion that the petitioners were not the agriculturists, however, they having purchased the agricultural land, the said transaction was in breach of the provisions of the Ordinance and thus, entry number 1783 was rightly been cancelled by the Deputy Collector, Palitana by passing the order. While concluding it is submitted that the petition deserves to be dismissed.

15. At the outset, suffice it to say that the Apex Court as well as this court in catena of decisions, have time and again held that if the statute does not prescribe any time limit for initiation of proceeding and wherever the power is vested in the authority without prescribing any time limit, such power should be exercised within reasonable time. In the celebrated judgment of the Apex Court in case of Patel Raghav Natha (supra), the Apex Court, while dealing with the provisions of Sections 65 and 211 of the Gujarat Land Revenue Code, 1879 has held that although there is no period of limitation prescribed under Section 211, the power of the Commissioner to revise order under Section 65 must be exercised in a reasonable time, of course, considering the nature of the order Page 10 of 14 Downloaded on : Sun Feb 16 14:51:49 IST 2020 C/SCA/7709/2006 JUDGMENT which is being revised.

16. In the judgment of the Apex Court in the case of Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim, reported in (1997) 6 SCC 71, the Apex Court, while considering the judgment of this Court in the case of State of Gujarat vs.Jethmal Bhagwandas Shah (Special Civil Application No.2770 of 1979), with respect to the power under Section 84- C of the Bombay Tenancy and Agricultural Lands Act, 1976, held that wherever a power is vested in a statutory authority without prescribing any time limit, such power should be exercised within a reasonable time. The Apex Court in the said judgment reiterated the principles laid down by the Apex Court in case of State of Gujarat vs. Patil Raghav Natha (supra) and in the case of Ram Chand vs. Union of India, reported in (1994) 1 SCC 44.

17. Concededly, in the present case, the transaction had taken place in the year 1971, apropos which, entry number 1783 dated 21.3.1971 came to be mutated in the revenue record and was subsequently certified by the Mamlatdar on 2.5.1971. Not only that after the death of Shri Premjibhai Nagjibhai, i.e. the father of the petitioners, heirship came to be recorded in the revenue record by mutating entry number 3572 dated 20.12.1989. It is after a period close to 25 years, the Deputy Collector, Palitana issued a notice dated 10.10.1995 requiring the petitioners to show cause as to why entry number 1783 dated 21.3.1971 should not be cancelled. Thus, it is evident that the Deputy Collector, Palitana took the action almost after period close to 25 years and thus, the same cannot be countenanced. At this stage, it is pertinent to Page 11 of 14 Downloaded on : Sun Feb 16 14:51:49 IST 2020 C/SCA/7709/2006 JUDGMENT mention that it is not even the case of the respondent authorities that the transaction with respect to the land in question and consequent mutation of entry in the revenue record was vitiated by fraud or that the respondent authorities were not aware about the said transaction. Under the circumstances, the action on the part of the Deputy Collector, Palitana in issuing the notice dated 10.10.1995 almost after a period close to 25 years and consequent thereupon, passing the order dated 17.4.1996, is against the well settled proposition of law and hence, is illegal and bad in law.

18. So far as the order dated 3.5.1999 passed by the Collector, Bhavnagar is concerned, as is clear from the observations and conclusions recorded in the said order of the Collector, Bhavnagar, the Collector, Bhavnagar has missed to advert to the aspect of initiation of the action on the part of the Deputy Collector, Palitana after delay of nearly 25 years. Similarly, the Joint Secretary (Appeals), Revenue Department, has also not examined the said aspect of initiation of action and consequent cancellation of entry after a delay of almost 25 years. Hence, all the autohrities viz. Deputy Collector, Palitana, Collector, Bhavnagar and the Joint Secretary (Appeals), Revenue Department have committed an error in passing the orders cancelling the entry number 1783 and entry number 3572 dated 21.3.1973 and 20.12.1989 respectively.

19. In view of the aforesaid the order dated 17.4.1996 passed by the Deputy Collector, Palitana and the order dated 3.5.1999 passed by the Collector, Bhavnagar followed by the order dated 31.1.2006 passed by the Joint Secretary (Appeals), Revenue Department deserve to be quashed and set aside.

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20. Adverting to the another submission of the learned counsel for the petitioners that the action of the Collector, Bhavnagar is illegal inasmuch as the Deputy Collector, Palitana had issued notice dated 10.10.1995 only for the limited purpose of cancelling the entry number 1783 dated 21.3.1971 as well as entry number 3572 dated 20.12.1989 under the Gujarat Land Revenue Code, 1879, whereas the Collector, Bhavnagar while deciding the revision application and passing the order dated 3.5.1999 observed and held that the transaction of the purchase of land in question by Shri Premjibhai Nagjibhai i.e. the father of the petitioners was in breach of the provisions of the Ordinance. Undisputedly, no independent proceedings were ever initiated by the Collector under the provisions of the Ordinance determining the breach. The Collector, Bhavnagar while exercising the powers under one enactment, could not have exercised the powers under the Ordinance considering the fact that the said issue is no longer res integra. This Court in the case of Evergreen Cooperative Housing Society (supra) has held that if the power are conferred under one enactment, they cannot be exercised while dealing with the question under another enactment, especially when the revenue officers are empowered to act under various enactments. On this count also, the order dated 3.5.1999 passed by the Collector, Bhavnagar is without any authority of law and deserves to be quashed and set aside.

21. Adverting to the third contention raised by learned advocate for the petitioners that the order dated 17.4.1996 is in violation of principles of natural justice, deserves acceptance. Pertinently, the order of the Deputy Collector, Page 13 of 14 Downloaded on : Sun Feb 16 14:51:49 IST 2020 C/SCA/7709/2006 JUDGMENT Palitana was passed on the basis of the report dated 31.7.1995 of the Mamlatdar, Gariyadhar, which report was neither disclosed nor offered to the petitioners. The learned Assistant Government Pleader is not in a position to controvert the said aspect that the report of the Mamlatdar, Gariyadhar dated 31.7.1995 was ever furnished to the petitioners or that the petitioners have been served with all the documents prior to the passing of the order dated 17.4.1996 by Deputy Collector, Palitana. Thus, the order dated 17.4.1996 passed by the Deputy Collector, Palitana is in clear breach of the principles of natural justice. On this count as well, the order of the Deputy Collector, Palitana and confirmed by the Collector, Bhavnagar as well as the Joint Secretary (Appeals) deserve to be quashed and set aside.

22. In view of the afore-mentioned discussion, the order dated 17.4.1996 passed by the Deputy Collector, Palitana and the order dated 3.5.1999 passed by the Collector, Bhavnagar followed by the order dated 31.1.2006 passed by the Joint Secretary (Appeals), Revenue Department are hereby quashed and set aside.

23. The petition, therefore, succeeds and is accordingly allowed. Rule is made absolute. No order as to costs.

(SANGEETA K. VISHEN,J) BINOY B PILLAI Page 14 of 14 Downloaded on : Sun Feb 16 14:51:49 IST 2020