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Rajkendrakunvarba Madarsinhji ... vs Chandulal Bhogilal Soni &

High Court Of Gujarat|27 September, 2013
Heard learned advocates for the parties.
The petitioner, whose heirs are now on record on account of her demise during the pendency of the petition happened to be the opponent no. 1 in the proceeding of Revision Application No. TEN.BR.119 of 1983 in the Gujarat Revenue Tribunal, Rajkot, approached this Court by way of this petition under Article 227 of the Constitution of India and in the matter under the provisions of the Gujarat Agriculture Lands Ceiling Act, 1980 (hereinafter referred to as the Ceiling Act for short) with following prayers:
(A) to allow this petition with cost;
(B) to call for the record and proceedings of Ceiling Case No. 233/81 from the Deputy Collector, Rajkot, and of revision application No. TEN.B.R.119/83 from the Gujarat Revenue Tribunal (C) to quash and set aside the judgment of the Gujarat Revenue Tribunal (Annexure. B ) and to restore the order passed by the Deputy Collector, Rajkot (Annex. A );
(D) to stay the execution, implementation and enforcement of the order of the Gujarat Revenue Tribunal (Annex. B ) for the purpose of inquiry under Sections 20-21 of the Ceiling Act, pending the hearing and final disposal of this petition;
(E) to pass such order or orders as the nature and circumstances of the case may require Thus, what is essentially under challenge is the order dated 3.7.1984 passed by the GRT in the aforesaid Revision Application No. TEN.BR.119/1983 whereby the learned Member of the GRT after holding that the Deputy Collector, the authority, whose order was under challenged was incorrect in concluding that the declaration under Section 8 of the Ceiling Act was justifiable to be given to the petitioner for alienating the land in question so as to take out that part of the land from her holding.
Brief facts leading to filing this petition as could be gathered from the memo of petition deserve to be set out as under:
The petitioner held of 250 acres and 18 gunthas of land in village Tramba of Rajkot Taluka. She transferred part of the land by registered documents of gift executed on 12.5.1972 in favour of her sincere servants and sisters and nephew, who had taken care of her as widow having no child of her own and on account of such services, she by way of recognizing their services, parted with the land by way of gift in favour of those, whose names are figuring at para-3 on page-4, which could be reproduced as under:
Sr No.
Name Measure ment of land A G Relation ship 1 Bhavansinh Pratapsinh 18-00 Nephew 2 Sujansinh Pratapsinh 18-00 Nephew 3 Chandulal Labhubhai Bhatti 9-8 Servant 4 Ravji Govind 0-6 Servant 5 Jayaba Pratapsinh 12-5 6 Lilaba Harishchandrasinh 12-5 Sister 7 Sakerben Jivanbhai 8-6 Servant 8 Harkubha Bhupatsinh 5-1 servant Thus, the deed of gift was executed on 12.5.1972 and the mutation entry could be effected only in the year 1976 and certified thereafter. When the petitioner filed an application on 10.9.1976 for seeking declaration under Section 8 of the Ceiling Act. Initially that application came to be rejected by the concerned authority vide order dated 1.7.1988, wherefrom, the revision application was preferred whereunder, the Tribunal passed an order on 26.3.1981 holding that the Deputy Collector did not follow the procedure, which was required to be followed and granted opportunity to be heard to all the concerned and therefore, while quashing and ordering remanded the matter for consideration at the end of Deputy Collector Competent Authority under the Ceiling Act.
On remand, the concerned Competent Officer, after holding due inquiry and issuing notice to all, and notice to Deputy Mamlatdar, (Revenue) and after examining the evidences on record, passed an order on 22.11.1982 granting declaration in favour of the petitioner that transaction of gift by the petitioner in favour of 8 persons, named in para-3 was bonafide and was not made with a view defeat the provisions of the Act. The finding of the Deputy Collector have been enlisted in para-6 of the memo of petition. The State through Deputy Collector (LR) Rajkot preferred Revision Application on behalf of the State, which was filed on 4.3.1983. The time limit for filing revision application being 60 days, it was admittedly filed beyond the period of limitation. It is also averred in the memo of petition at para-7 that though the Revision Application was filed after the period of limitation, no prayer was made in the memo of revision nor was there any separate application for seeking condonation of delay made. The said revision application came to be registered as Revision Application No. TEN.BR119 of 1983. The Tribunal vide its decision dated 3.7.1984 allowed the same and quashed and set aside the order of the Deputy Collector Rajkot. Aggrieved and dissatisfied with the same, the petitioner preferred present petition for the ground stated in the memo of petition. In this petition, the petitioner has joined the beneficiaries in whose favour the gift deed were executed and were joined as respondents and as per the record, notice was not issued as there was conflicting of interest between the petitioner and private respondents in whose favour the gift deed was made.
Learned advocate appearing for the petitioner submitted that the land in question if considered to be a bid land, then, from that angle, it was not required to be treated as the excess land in view of the unamended provisions under the Act and if it is to be treated as the land, other than the bid land, then, the transaction made was bonafide in gifting the land in favour of those private respondents, who were in fact gifted this land in response of their sincere services to the petitioner lady, who had to live her life without any child of her own. The Act of gift though was completed on 12.5.1972, the revenue entries were not effected till 1976, that itself would not have any effect upon the factum of actual transfer of land and what was required to be noted by the authority was only that whether the transaction was bonafide or otherwise. The order of the Deputy Collector of the year 1977 was quashed and set aside by the Tribunal as all the relevant parties were not heard and therefore, when subsequently concerned Deputy Collector passed an order after hearing all the concerned and recording findings, which have been revealing that they have been recorded only after examining the witnesses and permitting their cross-examination by the other side, then such an order could not have been subject matter of challenge by the State.
Learned advocate for the petitioner thereafter submitted that the Revision Application was itself not maintainable on account of limited scope of maintainability in view of the express provisions of Section 38 of the Ceiling Act, which clearly indicate that only in the eventuality mentioned thereunder, revision could be filed challenging the order of the Deputy Collector or Collector under this Act. Learned advocate for the petitioner invited this Court s attention to the similar provision in form of Section 76 of the Bombay Tenancy and Agriculture Lands Act and submitted that this provision is parimateria with provisions of Section 38 of the Ceiling Act and the Apex Court has observed that revision would not lie except the matter is falling clearly within the parameters thereof. The facts of that case were discussed and it was submitted that the Court held that there was no warranting of revision application as it was not falling in one of the grounds available for filing the application, as reported in AIR 1977 SC 1712 in case of SITA RAM BHAU PATIL VS. RAMCHANDRA NAGO PATEL (DEAD) BY LRS. AND ANOTHER. One more decision is cited at bar which is in respect of Section 38 itself, i.e. in case of State of Gujarat & Anr. Vs. Gujarat Revenue Tribunal & Anr, reported in 2008 (3) GLH, 734.
The Court held that the learned Tribunal ought to have address and replied before exercising their revisional jurisdiction and set aside the order dated 29.4.1989. The issue whether the finding by the Deputy Collector in the said order resulted into miscarriage of justice. In other words, it was submitted that the Tribunal could have exercised jurisdiction in respect of the parameters led in the statute in form of Section 38.
Learned advocate for the petitioner further submitted that the order of the Tribunal indicate that the Tribunal had no occasion to even examine the challenge, which did not arise out of the three parameters provided under Section 38 of the Ceiling Act.
Learned advocate for the petitioners thereafter contended that the Tribunal has committed serious irregularities in exercising the revisional power in Revision Application, which was admittedly filed after a period of limitation, without being accompanied documents by any form or application for delay condonation.
Learned counsel for the petitioner submitted that when the statute provides a period of limitation, then, when the Revision Application is to be preferred and when the same is preferred beyond the period of limitation, then, unless and until it is accompanied with requisite application for delay condonation, the revisional authority would not have jurisdiction to enter upon the controversy in any manner.
Learned advocate relying upon the decision of the Apex Court in case of RAGHO SINGH VS. MOHAN SINGH AND OTHERS, reported in (2001) 9 SCC 717, contended that the delay condonation application is sine-qua-none for the jurisdiction to be exercised when the time bar applications are placed for adjudication. One more decision of this Court on the same line is also pressed into service in case of DARABSHA SORABJI VS. STATE OF GUJARAT, reported in 2005 (2) GLR 1409.
Learned advocate for the petitioner invited this Court s attention to the observation of the Tribunal and submitted that the issue of delay is not taken into consideration the way it should have been taken into consideration as it went into the root of the jurisdiction exercised by the Tribunal. He emphatically submitted that in respect of the observation of the Tribunal made in para-4, which is at page-33 of the compilation, to indicate that during the course of hearing, when the judgment was rendered, Tribunal has recorded that delay condonation application is filed on that day, which clearly indicates that the Tribunal exercised the jurisdiction and heard the matter without their being any jurisdiction in it as the delay condonation application itself was filed, when the judgment was being rendered or matter was being finally heard. Therefore, the exercise of jurisdiction itself is contrary to the provisions of law and hence petition is required to be allowed.
Learned AGP submitted that the plain reading of Sections 7 and 8 would not permit the petitioner to urge qua amendment in bid land as the controversy pertaining thereto have been rested for once and all in view of the decision of the Supreme Court in case of Nagbhai Najbhai Khackar Vs. State of Gujarat, reported in (2010) 10 SCC 594.
Learned AGP appearing for the State further contended that aforesaid decision of the Apex Court is referred to and ratio is reiterated by the latest decision of the Apex Court reported in case of State of Gujarat and another Vs. Manoharsinhji Pradyumansinhji Jadeja, reported in (2013) 2 SCC 300, and therefore, any amount of authenticity ingenious argument shall have no scope to occupy the time of the Court in such an old matter, which is pending since years.
Learned AGP thereafter invited this Court s attention to to the observation of this Court in respect of purport of Sections 38 and 41 of the Ceiling Act and submitted that in case of ASHWINKUMAR NEE PANKAJBHAI GORDHANBHAI PATEL VS. STATE OF GUJARAT, reported in 2009 (1) GLR 79, wherein, this Court has held that though the revision is filed within the parameter prescribed but the Tribunal s power to pass order is to be understood from the language of section 41 itself, which is said to be permitted the Tribunal to pass appropriate order, that may be deemed fit by the Tribunal and Tribunal is not restricted by the parameters of Section 38 itself.
This Court has heard learned advocates for the parties and perused the memo of petition and annexures thereto. The facts remains to be noted that the question of bid land would not change the table in any manner as the question of bid land is not a question which is required to be elaborately discussed, as the Court is of the considered view that looking to the observations of the Deputy Collector as well as the Tribunal, it cannot be said that the land in question was not in excess, if the gift portion of land is counted as the part of the holding of the petitioner. Therefore, the Court is not inclined to accept the submission of learned advocate for the petitioner on the ground of bid land being not forming part of the holding prior to the amendment and therefore, not requiring the petitioner to apply for any exemption.
This brings the Court to consider the next two grounds, which have been alleged for assailing the order of Tribunal namely, the lack of jurisdiction on the part of Tribunal. It has the jurisdiction in rendering the order and assumes jurisdiction, when it did not have any time bar revision application, the Court is of the considered view that the Tribunal could not be said to have any jurisdiction to go beyond the parameters mentioned in the Section 38 of the Act in as much as the decision of the Apex Court in respect of Sita Ram Bhau Patil (supra) is unequivocally clear on the aspect of exercise of jurisdiction as Section 76 is in paramateria with Section 38 and Section 41 of the Ceiling Act is also parimateria with Section 78 of the Bombay Tenancy and Agriculture Lands Act, meaning thereby, the Supreme Court s pronouncement in respect of power of the Tribunal will have to be borne in mind while examining the time barred question, while in instant case, the recording of the finding by the Deputy Collector has summarized in para-4 of the petition, which deserve to be reproduced in order to appreciate the purport and finding recorded by the Deputy Collector, which reads as under:
(i) the transaction were effected by registered gift deed executed on 12th May, 1972;
(ii) the persons in whose favour the lands were gifted are in actual physical possession of the land since 1972; as is evident from the Village Form Nos. 6, 7 and 12;
(iii) the petitioner was 75 years of age and she had transferred the land in favour of the servants, who were aged 50 to 60 years, in consideration of their long and sincere services and the lands so given to them are their source of livelihood;
(iv) the lands are transferred bonafide and in the circumstances the petitioner cannot be attributed with the intention of defeating the provisions of the Act.
In the backdrop of these findings, let us examine the provisions of Section 38, which is invoked for filing Revision Application. Section 38 reads as under:
Section 38 : Notwithstanding anything contained in the Bombay Revenue Tribunal Act, 1957, an application for revision may be made to the Gujarat Revenue Tribunal constituted under the said Act against any order of the Collector on the following grounds only -
(a) that the order of the Collector was contrary to law;
(b) that the Collector failed to determine some material issue of law;
(c) that there was a substantial defect in following the procedure provided by this Act, which has resulted in the miscarriage of justice.
(2) In deciding applications under this section the Gujarat Revenue Tribunal shall follow the procedure which has been prescribed by rules and regulations made under the Bombay Revenue Tribunal Act, 1957.
Section 41: The Gujarat Revenue Tribunal in revision under section 38 may confirm, modify or rescind the order in revision or its execution or may pass such other orders as may seem legal and just in accordance with the provisions of this Act.
These two sections if read together would clearly indicate that the Tribunal get jurisdiction to entertain the Revision only and only when one of the three ground is available and adjudication if there, in accordance with Section 41 of the Act. Section 41 cannot be read dehors or in absence of section 38 and therefore, cannot be contravened with the two. Therefore, section 41 is required to be understood to have conferred powers of the Tribunal flowing only from the parameters of Section 38 and to this effect, there is judgment of the Supreme Court in case of Sita Ram Bhau Patil (supra) and as well as State of Gujarat & Anr. Vs. Gujarat Revenue Tribunal (supra).
Therefore, in light of these, when the finding of facts were recorded, there could have been no occasion to disturb the same without first being satisfied qua existing of the three grounds mentioned namely patent illegality or perversity and miscarriage of justice, which Tribunal has failed in observed in its order and therefore, on these grounds, the order is absolutely vulnerable and liable to be quashed and set aside.
The third ground, which impressed this Court very much is the ground of lack of jurisdiction in the Tribunal in entertaining the application as it was not accompanied with the application for condonation of delay at the first instance. Therefore, once the delay condonation application is not accompanied with the revision application, the Tribunal did not have jurisdiction to adjudicate it or hear that matter and therefore, the subsequent tendering of delay condonation application during the course of argument when the serious objection qua delay was raised, then even elaborate inadvertence to the order of knowledge of the order to the Competent Authority etc. would not come to the rescue of fertility in assumption of jurisdiction by the Tribunal. In absence of any specific application for condonation of delay. The delay condonation application ought not to have been received, as it was merely to over come a valid preliminary objection raised at the stage when the matter was finally heard, at that time, the Tribunal s permitting the applicant and condoning the delay on that basis itself amount to first assuming the jurisdiction and then, permit the party to rectify the lacuna which in the first instance did not leave any jurisdiction in the Tribunal to even entertain upon the adjudication process. Therefore, the delay condonation application since the inception was futility which could not have been treated to be cured on account of delay condonation application put forward by the applicant at the time of final hearing arguments are going on. Therefore, in my view, the Tribunal lacked jurisdiction, which is required to be deprecated by this Court in exercise of powers under Article 227 of the Constitution of India.
In the result, the order of the Tribunal, which is impugned in this petition, is quashed and set aside. The petition is allowed. Rule is made absolute. No costs.
(S.R.BRAHMBHATT, J.) pallav Page 13 of 13
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