Learned Advocate for the petitioner Shri R.N. Shah seeks to delete respondent nos.1/1 to 1/7.
Permission is granted.
Respondent nos. 1/1 to 1/7 stands deleted from the title clause of the petition.
The petitioners, by this petition under article 226 and 227 of the Constitution of India have challenged the orders passed by the authorities below of canceling the revenue entry No. 2905 mutated in respect of land Block No. 1150 ad measuring 1 Acre- 51 Are- 76 Sq. Ft. situated in the sim of village Khadsupa, Tal. Navasari.
As per the case of the petitioners, the petitioners purchased the above said land by registered sale deed from deceased Manibhai Haribhai in the year 1988 and on the basis of the said sale deed, the above said entry was mutated on 13.9.1989 and the said entry was certified on 1.1.1990. After the period of 5 years and 8 months the Collector has taken the said entry in review and ordered to cancel the said entry on the ground that the sale transaction was in contravention of Section 63 of the Bombay Tenancy Act.
The order of the Collector was challenged by the petitioners by preferring Revision before the Additional Chief Secretary (Appeal), Revenue Department who rejected the revision application and confirmed the order passed by the Collector. Both the orders are under challenge in the petition. The respondents have not filed any reply. Learned Advocate Shri R.N. Shah for the petitioner has submitted that the petitioners have purchased the land in question by paying full consideration to the original owner and there was no illegality in purchasing the land in question. He further submitted that, if at all the authority wanted to exercise the powers under the Revenue Code for taking entry in review, the revenue authorities were expected to exercise such power within reasonable period. He also submitted that it is settled principles of law that while deciding the entry proceedings, the revenue authorities are not entitled to decide the validity or otherwise of the original transaction because that is permissible only by the competent authority under another Act.
Therefore, Shri R.N. Shah, learned counsel for the petitioners has urged that the orders passed by the authorities below are required be quashed and set aside. In support of his submission, the learned advocate Shri Shah has relied on following authorities :-
Decision in the case of Champaklal Munabhai Sopariwala and Others vs. State of Gujarat reported in 1996 (2) G.L.H. (U.J.) 35.
Decision in the case of Evergreen Apartment Co-operative Housing Society vs. Special Secretary (Appeals), Revenue Department, Gujarat State reported in 1991(1) GLR
113. Decision in the case of Siddharth B. Shah vs. State of Gujarat reported in 1999(3) GLR 2527.
Decision in the case of Govindji Chhabaji and others vs Prant Officer and others reported in 2004 (2) G.L.H. 487.
Decision in the case of Santoshkumar Shivgonda Patil and others vs. Balasaheb Tukaram Shevale and others reported in 2009 (9) SC cases 352.
Decision in the case of Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim reported in (1997) 6 SCC 71.
Decision in the case of Natwarlal Mohanlal dutta vs. State of Gujarat, dated 16.2.2010 passed in Special Civil Application No. 11309 of 2009.
Decision in the case of Rameshbhai Ambalal Shah vs. State of Gujarat and another reported in 2011 (3) GLR 2587.
Decision in the case of Shambhuram Videshiram Morya vs. State of Gujarat through Secretary (Appeals) and others reported in 2012 (1) GLR 665.
Relying on the above authorities he submitted that the revenue authorities are not justified to take into review or revision, the entry after unreasonable long period and such revenue authorities are also not empowered to decide the validity or otherwise of the sale transaction while deciding the entry proceedings.
Learned A.G.P. Ms. Moxa Thakker has submitted that the authorities below have not committed any error in passing the order for canceling the entry because the sale transactions in respect of the land in question were indisputably in contravention of Section 63 of the Bombay Tenancy Act. She further submitted that the sale transaction itself being invalid and void, the revenue authorities were well within their powers to take into review the entry entered in the revenue record even after a period of 5 years and 8 months and the revenue authorities have not committed any error in holding that the sale transaction was invalid in the eye of law. Learned A.G.P., therefore, submitted that the Collector as also the revisional authority have rightly passed orders for cancellation of entry and for initiation of proceedings under Section 84-C of the Bombay Tenancy & ALT Act and this court should not interfere in the orders passed by the authorities below while exercising power under Sections 226 and 227 of the Constitution of India.
Having heard both the learned counsels and having perused the orders passed by the authorities below, I am of the opinion that the arguments advanced by Shri R.N. Shah, learned counsel for the petitioners are required to be accepted. Shri Shah is right in pointing out that the Collector was not justified for taking entry in review after the unreasonable period of 5 years and 8 months. As held in the above decisions the revenue authorities can not take into review or revision the entry after unreasonable long period. It is also settled by the earlier decisions of this court that while deciding the entry proceedings, the revenue authorities are not entitled or empowered to exercise powers under another act and to decide the validity or otherwise of the original sale transaction.
In all the above case, it has been consistently laid down that revenue authorities are not entitled to declare the sale transaction invalid while deciding the entry proceedings but also they can not exercise suo motu powers after unreasonable long period. Therefore, no detailed discussion on the settled principles of law is again required.
Perusing the orders passed by both the authorities below, it clearly appears that the entry was taken into review by the Collector under Rule 108 of the Revenue Code after a period of 5 years and 8 months. It also appears that in the said proceedings, the Collector as also the revision authority has held that the co purchaser Shri Piyushbhai Jayantibhai Kamdar, petitioner No. 2 was not agriculturist but has joined the agriculturist to the petitioner No. 1 with a view to take undue benefit of becoming agriculturist. Meaning thereby in the entry proceedings, the Collector has not only decided the validity of the sale transaction but also has declared the petitioner No. 2 to be non agriculturist and to take action under Section 84-C of the Bombay Tenancy & ALT Act. Such declaration as also the order deciding that the sale transaction is invalid and in contravention of Section 63 of the Act is beyond the power and competence of revenue authorities in entry proceedings.
The Petition is, therefore, required to be accepted, and the orders passed by both the authorities below are required to be quashed and set aside.
Accordingly, this Petition is allowed and the orders passed by both the authorities below are hereby quashed and set aside. However, if permissible under law, it will be open to the competent authority under other law to examine the validity of sale in favour of co-owner Shri Piyushkumar Jayantibhai Kamdar.
[C.L. SONI,J] FH.
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