IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8964 of 1998
For Approval and Signature:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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BANSIDHAR JIVANDAS RATHI
Versus
STATE OF GUJARAT & 9
=========================================A ppearance :
MR ANSHIN H DESAI for the Petitioner(s) MR RAHUL DAVE, ASSTT GOVERNMENT PLEADER for Respondent(s) : 1 - 3.
MR RR TRIVEDI for Respondent(s) : 4 - 5.
MR BHAVESH P TRIVEDI for Respondent(s) : 4 - 5. NOTICE SERVED BY DS for Respondent(s) : 6, RULE SERVED for Respondent(s) : 7 - 10.
MR MRUGEN K PUROHIT for Respondent(s) : 7 - 8, 10, (MR JC GOHIL) for Respondent(s) : 9, =========================================
CORAM : HONOURABLE MR.JUSTICE C.L. SONI
Date : 15/06/2012 ORAL JUDGMENT
1. Petitioners have challenged orders dated 14.2.1990 and 13.4.1988 passed by Additional Chief Secretary (Appeals) and the Collector respectively, whereby the order passed by the Deputy Collector dated 30.12.1987 cancelling Entry No.550, certified on 30.9.1981 in respect of the land bearing Survey No.111 admeasuring 3 acres and 15 gunthas, situated in village Navagadh, Taluka Jetpur, District Rajkot, is confirmed.
2. It is the case of the petitioners that father the petitioner late Shri Jivandas Laxmandas Rathi had purchased the aforesaid land by registered sale deed dated 29.7.1981 from respondent Nos. 6 to 10 herein. On the basis of the sale deed, the above-stated entry was effected in the revenue record and it was certified. However, after a period of 5 years, the petitioners were issued show cause notice dated 22.10.1986 by the Deputy Collector under purported exercise of suo motu powers under Section 211 of the Bombay Land Revenue Code (for short, 'the Code'). The said show cause notice, which is at Annexure-'C', was issued on the ground that the the sale transaction was in breach of Section 54 of the Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance, 1949 (for short, 'the Ordinance'). The Deputy Collector then passed order dated 17.3.1987 holding that the father of the petitioners was not agriculturist in the State of Gujarat and therefore, the transaction of sale was hit by Section 54 of the Ordinance. Therefore, the Deputy Collector ordered to cancel the entry by exercising suo motu power under Section 211 of the Code and also ordered the Mamlatdar to initiate necessary proceedings for the purpose of taking over the possession of the land in question. The said order was challenged by the petitioners by filing appeal before the Collector. The appeal was allowed and the matter was remanded to the Deputy Collector, by observing that the Deputy Collector ought not to have proceeded under Section 211 of the Code, but ought to have initiated proceedings under Rule 108(6) of the Bombay Land Revenue Rules (for short, 'the Rules'). Deputy Collector then again issued notice under Section 108(6) of the Rules and passed order dated 30.12.1987, whereby, again, taking the same view, he ordered to cancel the entry. This order was challenged by the petitioners before the Collector by filing appeal and the Collector, by order dated 13.4.1988, confirmed the order of the Deputy Collector. The petitioners challenged this order of the Collector before the Additional Secretary, Revenue Departments (Appeals). However, the Additional Secretary rejected the revision application of the petitioner by order dated 14.2.1990. It is the case of the petitioners that the authorities below have failed to consider three important aspects of the matter, viz. (1) father of the petitioners and in fact the petitioners are agriculturists and even if they were agriculturists, in the State of Rajasthan, there is no bar in holding agricultural land in the State of Gujarat, (2) initiation of the proceedings for cancellation of entry after unreasonable long period of 5 years was not permissible and (3) the authorities below while deciding the issue of entry in the revenue record, have also gone into the validity of the transaction and declared the sale transaction as invalid contrary to the provisions of the Ordinance, which was not permissible to be decided by the revenue authorities while deciding the issue of validity of effecting entry in the revenue record.
3. None of the respondents has filed reply to the petition.
4. Learned advocate for the petitioner Shri Anshin Desai has submitted that the petitioners and their father are in fact agriculturists and they were entitled to hold agricultural land in the State of Gujarat. He submitted that there is no bar insofar as the Ordinance is concerned for purchasing the land by the agriculturists who are not agriculturists within the State of Gujarat. Section 54 of the Ordinance provides for taking of permission for sale or purchase of the land, therefore, purchase or sale of the land is permissible by a person who is not agriculturist in the State of Gujarat with permission of the competent authority. So far as the petitioners are concerned, they are already agriculturists in the State of Rajasthan and therefore, the sale transaction in their favour in the State of Gujarat cannot be said to be in any way invalid or void transaction.
4.1. Learned advocate Mr. Desai next contended that the sale deed was executed in favour of the petitioners on 29.7.1981 and entry in the revenue record was certified in the month of September 1981. Therefore, he submitted that if at all the entry was required to be taken into suo motu revision, or even powers were required to be exercised under Rule 108 for deciding the validity of such entry, by Deputy Collector, then such powers were required to be exercised within reasonable period. He submitted that it is a settled principle of law that the revenue authority exercising suo motu power for deciding the validity or otherwise of the entry effected in the revenue record, cannot exercise such power after unreasonable long period. In the present case, the Deputy Collector initiated the proceedings for suo motu revision in respect of the entry in the revenue record after a period of 5 years, which was not permissible in the eye of law.
5. Learned counsel for the petitioners, in support of his submissions, has relied upon few decisions. One is in the case of State of Gujarat Vs. Amrutlal Hansrambhai and others- reported in 2007(3) GLH 743. He pointed out that in the said case, the issue was raised in context of the provisions of the very Ordinance and the learned Single Judge of this Court in the said case has held that since there has been unexplained delay at the end of the Deputy Collector, in invoking the power of suo motu revision, for taking entry in revision, such order was rightly quashed by the Gujarat Revenue Tribunal and no interference was called for by this Court. Meaning thereby, when the Deputy Collector has exercised the suo motu power after long unexplained delay, the order of the Deputy Collector holding the entry as illegal on the ground of sale transaction effected in contravention of Section 54 of the Ordinance could not stand scrutiny of law. Of-course, in the said decision, learned Single Judge did not accept the argument on behalf of the petitioner of that petition that the agriculturist of another State could be taken as agriculturist within the State of Gujarat and confirmed the view of Tribunal that transfer of the land in favour of the agriculturist who is not agriculturist in the State of Gujarat was in contravention of Section 54 of the Ordinance. Others are in the case of Santoshkumar Shivgonda Patil and others Vs. Balasaheb Tukaram Shevale and others reported in (2009)9 SCC 352, in the case of Champaklal Manubhai Sopariwala and others Vs. State of Gujarat reported in 1996(2) GLH (UJ) 35, in the case of Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim reported in (1997)6 SCC 71, and in the case of Govindji Chhabaji and others Vs. Prant Officer and others reported in 2004(2) GLH 487.
5.1. The other decisions relied are, in the case of Rameshbhai Ambalal Shah Vs. State of Gujarat and Another, reported in 2011(3) GLR 2587 and in the case of Gulabbhai Ravjibhai Patel Vs. Badriprasad Vithalrao Bende and Others, reported in 2011(3) GLR 2472. Both are in context of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, but the ratio of these two decisions is about the exercise of the powers by the revenue authorities for cancellation of the entry and for holding the sale transaction invalid after unreasonable delay.
5.2. Learned counsel Mr. Desai has also relied on one decision dated 16.2.2010 rendered in Special Civil Application No.11309 of 2009 and contended that this Court in the said decision has taken a view relying on the earlier decisions that the revenue authority cannot while deciding mutation entry in RTS proceedings determine validity of the sale transaction. He pointed out that entry is required to be made in the revenue record on the basis of the sale deed and if validity of such transaction is to be decided then it is the competent authority under the concerned Act who has to first decide the validity or otherwise of the transaction. But, the revenue authorities while deciding the issue of entry cannot decide validity of the original sale transaction. Mr. Desai has pointed out that time and again, this Court has not approved the action on the part of the revenue authorities in declaring the sale deed as invalid while deciding the entry proceedings. He, therefore, submitted that the order passed by the Deputy Collector and the Collector are not only against the settled principle of law declared by this Court as regards deciding the validity of the sale transaction as well as also deciding the issue of entry in the revenue record. He submitted that since principle of taking the entry in suo motu revision within reasonable time is now fully settled, the revenue authorities are not justified in ordering to cancel the entry after taking such entry in suo motu revision after unreasonable long delay. He contended that the Additional Chief Secretary has committed grave error in confirming the orders of lower authorities and declaring the sale transaction as invalid, which is nothing but the powers exercised de hors the settled principles of law. Therefore, he urged that the orders passed by all the authorities below are required to be quashed and set aside.
6. Learned Assistant Government Pleader Shri Dave has submitted that the sale transaction itself was invalid as the petitioners were not agriculturists within State of Gujarat and therefore, they are not entitled to purchase agricultural land in the State of Gujarat. He, therefore, submitted that the authorities below have not committed any error in ordering to cancel the entry and also declaring the sale transaction as invalid. He submitted that if the original sale transaction is invalid from beginning, delay in initiating the proceedings for cancellation of entry and for declaring the sale transaction as invalid would never come in the way of the authority because invalid transaction remains as invalid and void for all time to come and there is no bar of limitation to the authorities to cancel the entry and declare such transaction as invalid. He submitted that if the revenue authorities are not permitted to exercise their powers, on the ground of delay on the face of it, such sale transaction was invalid and void, though the very purpose and intent of the provisions of the Ordinance would be rendered nugatory. He, therefore, submitted that the Deputy Collector, the Collector and the Revisional Authority have not committed any error in ordering cancellation of entry on the ground that the sale transaction itself was invalid and void.
7. Learned advocate Mr. Purohit, who is appearing for the original owners, has stated before the Court that he has got no instructions in the matter. He has, therefore, not advanced any argument. Learned advocate for respondent No.9 has not appeared before the Court.
8. Having heard the arguments of learned advocates for the parties and having perused the orders passed by all the authorities below, I am of the opinion that the Deputy Collector as also the Collector and the Revisional Authority have committed grave error in ordering to cancel the entry after lapse of 5 years on the ground that the sale transaction was hit by Section 54 of the Ordinance. Notice at page 60, Annexure-'C' issued by the Deputy Collector was issued after a period of 5 years and there is no explanation coming forth from the State authorities as to why the Deputy Collector decided to exercise the revisional power after a period of 5 years. The ground on which the revisional powers were initiated for cancellation of entry was to the effect that the petitioners who were not agriculturists in the State of Gujarat, were not entitled to purchase agricultural land and since there was no permission taken for purchase of such land, the sale transaction was in breach of the provisions of the Ordinance. It is pertinent to note that the revenue authorities while deciding the validity or otherwise of the entry, have also gone into the validity of the sale transaction itself. It is a settled position of law that the revenue authorities while deciding the correctness of entry, under one Act, cannot simultaneously decide validity or otherwise of the original sale transaction for which proceedings are required to be taken under the other Act and by the competent authority. In the present case, entries which were taken into revision were under the provisions of the Bombay Land Revenue Code. The main submission, however, about the exercise of the powers by the revenue authorities after unreasonable long period of time is covered by various decisions in favour of the petitioners in the facts of the case. In the case of Santoshkumar Shivgonda Patil (supra) in the context of the provisions Maharashtra Land Revenue Code, it is held that the Statute does not prescribe time limit for exercise of the revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. In the case of Mohamad Kavi Mohamad Amin (supra), the Hon'ble Supreme Court in the context of the Bombay Tenancy and Agricultural Lands Act has held that suo motu powers should be initiated within a reasonable time where no time is prescribed for exercise of such power under the Statute. In the case of Govindji Chhabaji (supra), learned Single Judge of this Court in the context of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 has held that revenue authorities while exercising the powers under Rule 108 of the Rules cannot pass orders of cancelling the entries on an assumption that the transactions recorded in the entries are against the provisions of particular enactment. Whether transaction is valid or not, has to be examined by the competent authorities under a particular enactment by following the prescribed procedure and by giving opportunity of hearing to the concerned parties. In the case of Amrutlal Hansrajbhai (supra), learned Single Judge has considered the issue of sale of land taken place in breach of these very provisions of law with which we are concerned and the learned Single Judge has confirmed the order of the Tribunal, which held that the Deputy Collector has exercised the powers of suo motu revision after long and unexpected delay and therefore, even if transaction was found to be contrary to Section 54 of the Ordinance, because of the suo motu exercise of the powers by the Deputy Collector after long unreasonable time, learned Single Judge did not interfere with the order passed by the Tribunal, which quashed and set aside the order passed by the Deputy Collector as the Deputy Collector has exercised suo motu power after long unreasonable time. In fact, the said judgment would cover the issue of exercise of suo motu powers after long period of time by the revenue authorities. As stated above, the entry was effected in the year 1981 and the Deputy Collector decided to initiate proceedings in 1987, i.e. after unreasonable long period of 5 years. Without any repetition, relying on various decisions, cited by learned advocate Mr. Desai on the point that the revenue authorities cannot initiate suo motu revisional powers after unreasonable long period, I am of the opinion that the Deputy Collector has committed grave error in taking the entry in revision after unreasonable long period of 5 years and therefore, such order of the Deputy Collector could not stand scrutiny of law. Since the order passed by the Deputy Collector is bad in law, the Collector and the Revisional Authority have committed grave error in confirming the order passed by the Deputy Collector. In the result, the petition is required to be accepted and the orders passed by all the authorities below are required to be quashed and set aside.
9. Accordingly, the petition is allowed. The orders passed by the authorities below are hereby quashed and set aside. Rule is made absolutely.
omkar Sd/-
(C.L. SONI, J.)