As similar issues of fact and law are involved in the petitions that are directed against the order dated 21.06.2002 (26.06.2002) passed by the Principal Secretary (Appeals), Revenue Department, and orders dated 27.12.2011 (in Special Civil Application No.2917/2012) and 05.01.2012 (in Special Civil Application No.2918/2012) passed by the Deputy Collector, as a consequence of the order of the Principal Secretary (Appeals), they have been heard together and are being decided by a common judgment. For the sake of convenience, the facts of Special Civil Application No.2917 of 2012 shall be noticed.
It is the case of the petitioners that they had purchased land admeasuring 10816 square metres comprised in Block No.686 of village Anaval, Taluka: Mahuva, District: Surat, from respondent No.4, who belongs to the Scheduled Tribe, on 27.06.1979 (wrongly mentioned as "27.06.1989" in the petition). As per the case of the petitioners, possession of the land was taken by them pursuant to the said transaction. In the year 1994, a notice was issued to the petitioners under the provisions of Section 73AA of the Gujarat Land Revenue Code, 1879 ("the Code" for short). The Deputy Collector, Vyara, held that there was no breach of Section 73AA by the petitioners, hence, the show cause notice was withdrawn by order dated 30.06.1994. Thereafter, respondent No.2 - Principal Secretary (Appeals), initiated suo-motu proceedings against the petitioners and, by impugned order dated 21.06.2002 (26.06.2002), set aside the order of the Deputy Collector dated 30.06.1994, by remanding the matter to the Deputy Collector for initiation of proceedings under Section 73AA of the Code. The Deputy Collector initiated proceedings under Section 73AA of the Code, that have culminated in passing of the impugned orders dated 27.12.2011 and 05.01.2012 by the Deputy Collector, wherein findings have been recorded that, since prior permission of the Collector was not obtained for selling the land to a non-tribal person by a tribal person, there was a violation of Section 73AA(4) of the Code, hence, the land be vested in the State Government. The impugned orders of the Deputy Collector also state that separate proceedings would be initiated for imposition of fine under Section 73AA(7) of the Code. Being aggrieved by the orders of the Principal Secretary (Appeals) and Deputy Collector, as mentioned hereinabove, the petitioners have approached this Court by filing the present petitions.
Mr.M.A.Bukhari, learned advocate for the petitioners, has submitted that the impugned orders of the Principal Secretary (Appeals) and the Deputy Collector are misconceived, as the said authorities have misinterpreted the relevant provisions of the Code. That, after passing of the order dated 30.06.1994, by the Deputy Collector, closing the proceedings pursuant to the show cause notice, there was no justification for initiation of suo-motu proceedings in the year 2001. In any case, suo-motu proceedings have been initiated after a delay of almost seven years, which is an unreasonable period, as held by the Division Bench of this Court in Bhagwanji Bawanji Patel v. State of Gujarat And Anr.
reported in 1971 GLR 156.
It is submitted that the power under Section 211 of the Code must be exercised within a reasonable period of time, even though no period of limitation has been prescribed in the said provision of law. In that case, the Court had found a period of seven years to be an unreasonable period. It is contended that in the present case as well, there is a delay of about seven years in initiating suo-motu proceedings by respondent No.2, therefore, the impugned orders passed by respondent No.2 on 21.06.2002 (26.06.2002) deserve to be quashed and set aside, as also the consequential orders of the Deputy Collector.
It is further submitted that the sale transaction took place on 27.06.1979, i.e. before Section 73AA of the Code came into effect with effect from 01.02.1981, therefore, the notice was rightly withdrawn by the Deputy Collector vide order dated 30.06.1994. This being the position, there is no justification for reopening the closed proceedings by respondent No.2 after an unreasonably long period of time. It is contended by the learned advocate for the petitioner that the impugned orders of the Deputy Collector have been passed against dead persons, as Ramabhai Vitthalbhai Dhangar, one of the original land owners, expired on 27.02.2000 and Rameshbhai Ichharam Tailor (Bhavsar), who was one of the purchasers of the land, expired on 26.09.2010. Therefore, on this ground as well, the orders of the Deputy Collector deserve to be quashed and set aside, having been passed against dead persons, without bringing their heirs on the record of the case.
On the strength of the above submissions, it is prayed that the impugned orders be quashed and set aside, and the petition allowed.
Ms.Nisha M.Thakore, learned Assistant Government Pleader, has appeared for respondents Nos.1 to 3, on supply of an advance copy of the petition, being Special Civil Application No.2917 of 2012, and has opposed the issuance of Notice in the petitions. It is submitted by the learned Assistant Government Pleader that the impugned order dated 21.06.2002 (26.06.2002) passed by the Principal Secretary (Appeals), has already been implemented by passing of the impugned orders dated 27.12.2011 and 05.01.2012, by the Deputy Collector. The petitioners cannot now challenge the said order after its implementation, and that too, after a period of almost ten years. It is further contended that no explanation for the delay has been offered by the petitioner. Further, pursuant to the notices issued by the Deputy Collector, the petitioners did not appear, as is evident from the impugned orders, and neither did they bring to the notice of the authorities the fact regarding the death of the original land owner Ramabhai Vitthalbhai Dhangar on 27.02.2000, and of Rameshbhai Ichharam Tailor (Bhavsar), predecessor-in-interest of respondent No.4, on 26.09.2010. As the petitioners did not appear before the Deputy Collector in spite of issuance of notices, they cannot now seek to take benefit of their own wrong.
The learned Assistant Government Pleader has further submitted that Section 211 of the Code contains no prescribed time-limit for exercise of power and such exercise depends on the facts and circumstances of each case.
The learned Assistant Government Pleader has placed reliance upon a judgment of this Court in Maganlal V.Lodhiya v. Chief Controlling Revenue Authority & Ors. reported in 2011(1) GLR 458 in support of her submissions regarding delay in filing the petitions.
Mr.Rohan Yagnik, learned Assistant Government Pleader, appearing for respondents Nos.1 to 3, on supply of an advance copy of the petition, being Special Civil Application No.2918 of 2012, has adopted the submissions made by Ms.Nisha Thakore, learned Assistant Government Pleader, in Special Civil Application No.2917 of 2012.
On the strength of the above submissions, it is prayed that the petitions be not entertained.
I have heard the learned counsel for the respective parties, perused the averments made in the petitions and the documents annexed thereto.
From the material on record, it emerges that land admeasuring 12277 square metres of Block No.686, situated at Village: Anaval, Taluka: Mahuva, District: Surat, was running in the name of Ramabhai Vitthalbhai Dhangar, who belonged to a Scheduled Tribe. Out of this, land admeasuring 10816 square metres was purchased by the petitioners. In respect of land admeasuring 10816 square metres of the above mentioned land, the petitioners executed an agreement to sell on stamp paper worth Rs.10/- on 27.06.1979 (wrongly mentioned as "27.06.1989" in the petition), pursuant to which, possession was taken over by them. Suo-motu proceedings, initiated by the Deputy Collector under Section 73AA in the year 1994, were withdrawn by order dated 30.06.1994, of the Deputy Collector, on the ground that the provisions of Section 73AA of the Code were not in force on 27.06.1979, when the agreement to sell was executed in favour of the petitioners. Thereafter, suo-motu proceedings appear to have been initiated by respondent No.2 in the year 2001, that culminated in the impugned order dated 26.06.2002, remanding the matter to the Deputy Collector for initiation of proceedings under Section 73AA of the Code. As a consequence of this order, the Deputy Collector has initiated proceedings and has passed the impugned orders dated 27.12.2011 (in Special Civil Application No.2917/2012) and 05.01.2012 (in Special Civil Application No.2918/2012), directing forfeiture of the land to the State Government.
A perusal of the impugned order of the Principal Secretary dated 21.06.2002 (26.06.2002) makes it clear that notices had been issued to the petitioners on 24.09.2001 and the learned advocate for petitioner No.1 (Dhansukhbhai) had submitted his reply. None had appeared for the original land owner, nor had any reply been filed on his behalf. The said order has been passed after hearing the petitioners and considering the submissions made by them. The petitioners were very much aware of the order passed by respondent No.2 on 21.06.2002 (26.06.2002). In spite of this, they did not choose to challenge the same till the filing of the present petition, on 03.03.2012. Having accepted the order for a period of almost ten years, the petitioners have now chosen to challenge the same only because consequential orders have been passed by the Deputy Collector on 27.12.2011 and 05.01.2012, implementing the order passed by the Principal Secretary (Appeals).
There is no explanation, whatsoever, in the petitions, for the delay in challenging the order dated 21.06.2002 (26.06.2002) passed by the Principal Secretary (Appeals). There are no averments at all in the petitions, explaining the delay, leave alone showing sufficient cause. In this context, it would be fruitful to advert to certain relevant judicial pronouncements.
In Maganlal V.Lodhiya v. Chief Controlling Revenue Authority & Ors. (supra), relied upon by the learned Assistant Government Pleader, this Court held that a petition was liable to be dismissed as the petitioner could not offer any explanation for the delay of four years.
In Shankara Cooperative Housing Society Limited v. M.Prabhakar And Others reported in (2011)5 SCC 607, it has been held by the Supreme Court as under:
"46.
Delay and laches is one of the factors that requires to be borne in mind by the High Courts when they exercise their discretionary power under Article 226 of the Constitution of India. In an appropriate case, the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his rights taken in conjunction with the lapse of time and other circumstances."
In Paragraph-54 of the said judgment, the Court has enumerated certain principles that should be considered while determining whether delay or laches should be put against a person who approaches the Writ Court under Article 226 of the Constitution of India. The relevant extract of the judgment is as below:
"54. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are:
there is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.
The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.
The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy.
No hard-and-fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts.
That representations would not be adequate explanation to take care of the delay."
(emphasis supplied) Further, in Union of India And Others v. Har Dayal reported in (2010)1 SCC 394, the Apex Court has held as below:
"13.
On the facts and circumstances, the judgment of the High Court directing payment of the market value as in 1996 cannot be sustained. The writ petition ought to have been dismissed on the ground of delay and laches. But as the High Court (learned Single Judge and Division Bench) have chosen to exercise the discretion to ignore the delay and entertain the writ petition, we do not propose to interfere with the exercise of discretion."
(emphasis supplied) In S.Sumnyan And Others v. Limi Niri And Others reported in (2010)6 SCC 791, the Supreme Court has held that a belated petition is liable to be rejected. In that case, a writ petition was filed challenging the seniority position that prevailed ten years ago. In the meanwhile, the senior position became established and further promotions were effected. In this context, the Supreme Court held as below:-
"38.
The challenge appears to us to be belated and in this regard we would endorse the same view as expressed by this Court in the case of L. Chandrakishore Singh v. State of Manipur [(1999) 8 SCC 287] which is extracted hereinbelow: (SCC p.303, para 15) "15.
It is now well settled that even in cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown, the service rendered as officiating appointment or on probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. In this regard we fortify our view by the judgment of this Court in G.P. Doval v. Govt. of U.P. and Ors. [(1984) 4 SCC 329]."
Applying the principles of law enunciated by the Apex Court in the above-mentioned judgments to the facts of the present case, it is clear that the petitioners had accepted the order of the Principal Secretary (Appeals) dated 21.06.2002 (26.06.2002), till the filing of the present petitions. The said order has been challenged only after it has been implemented by the impugned orders dated 27.12.2011 and 05.01.2012, passed by the Deputy Collector, directing vesting of the land in question. The petitioners had been heard before the impugned order had been passed by the Principal Secretary (Appeals). Not only that, the submissions made on their behalf have been recorded and considered by the Principal Secretary (Appeals). It is not the case of the petitioners that they were not aware of the passing of the order. By the said order, the Deputy Collector had been directed to initiate action under the provisions of Section 73AA of the Code, which pertains to restrain on the transfer of land from a tribal to non-tribal without previous sanction of the Collector. The petitioners were, therefore, aware of the said directions. In the proceedings before the Deputy Collector, the petitioners chose not to appear in spite of issuance of notices, which fact is recorded in the orders of the Deputy Collector dated 27.12.2011 (in Special Civil Application No.2917/2012) and 05.01.2012 (in Special Civil Application No.2918/2012). Having failed to appear before the Deputy Collector in spite of issuance of notices, it does not lie in the mouth of the petitioners to now say that the order has been passed against dead persons.
Even otherwise, if the petitioners are aggrieved by the orders of the Deputy Collector, they can challenge the same before the higher revenue authority as per the provisions of law. The contentions raised by the petitioners in the present petition can very well be made before the said authority.
The learned advocate for the petitioners has submitted that after withdrawal of the notice by the Deputy Collector, by order dated 30.06.1994, the Principal Secretary (Appeals) initiated suo-motu proceedings after a delay of seven years, which, according to the petitioners, is an unreasonable period of time. In Bhagwanji Bawanji Patel v. State of Gujarat And Anr. (supra), relied upon by the learned advocate for the petitioners, a Division Bench of this Court has held that though no period of limitation is prescribed under Section 211 of the Code, the power of revision must be exercised within a 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. The principles of law enunciated in this judgment are not disputed. However, it cannot be ignored that a contention regarding delay in initiating suo motu proceedings was available to the petitioners from the date of passing of the order by the Principal Secretary (Appeals) dated 21.06.2002 (26.06.2002). However, the petitioners chose not to challenge this order or press this contention for ten long years. If the petitioners contend that exercise of suo motu power is bad, having been exercised after an unreasonable long period of time, then the same principles of law would be applicable to the petitioners, whose petitions would also have to pass the same legal test. As noted hereinabove, there is no explanation, whatsoever, in the petitions, for the delay caused in challenging the order passed by the Principal Secretary (Appeals) after a gross delay of ten years. In any case, the said order has now been implemented and, if the petitioners are aggrieved by the orders dated 27.12.2011 (in Special Civil Application No.2917/2012) and 05.01.2012 (in Special Civil Application No.2918/2012), passed by the Deputy Collector, they are at liberty to challenge the same before the higher revenue authorities.
Insofar as the impugned order of the Principal Secretary (Appeals), is concerned, it has been noticed therein that the Sale Deed in respect of the land in question had been executed only in the year 1994, after Non Agricultural Use Permission had been granted. The provisions of Section 73AA of the Code came into effect on 01.02.1981, i.e. before the execution of the Sale Deed, therefore, the said provision of law would be applicable to the Sale Deed. An agreement to sell had been executed in favour of the petitioners on 27.06.1979 for land admeasuring 10816 square metres comprised in Block No.686 of village Anaval, Taluka: Mahuva, District: Surat, by respondent No.4 on a stamp paper worth Rs.10/-. This is clear from the order dated 21.06.2002 (26.06.2002) of the Principal Secretary. No Sale Deed was executed till the year 1994, i.e. after coming into effect of Section 73AA of the Code. This aspect has also been noticed in the said order. The averment made in Paragraph-3.1 of the petition to the effect that the petitioners had purchased land admeasuring 10816 square metres of Block No.686 of village Anaval, Taluka: Mahuva, District: Surat, from respondent No.4 on 27.06.1979 (27.06.1989), does not, therefore appear to be correct. It is mainly for this reason that the Principal Secretary (Appeals), has directed the Deputy Collector to initiate proceedings under Section 73AA of the Code, as no prior permission had been taken for sale of the land in question by respondent No.4, who belongs to a Scheduled Tribe, in favour of the petitioners, who are non-tribal persons. A perusal of the impugned orders of the Principal Secretary (Appeals) shows that they are a well-reasoned orders, having been passed after hearing the parties and taking into consideration their submissions and the material on record. As the said orders do not suffer from any legal infirmity, the interference of this Court is not warranted. Insofar as the orders of the Deputy Collector are concerned, they have been passed after initiation of proceedings under Section 73AA of the Code. If the petitioners are aggrieved by the same, they can be challenged independently, on merits before the higher revenue authority.
For the aforestated reasons, the petitions, being devoid of merit, stand rejected.
(Smt.
Abhilasha Kumari, J.) (sunil) Top