Gangaben Jivanbhai Rabari vs State Of Gujarat

                                                                                 NEUTRAL CITATION




    C/SCA/19426/2021                             JUDGMENT DATED: 22/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 19426 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRAL R. MEHTA

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?                                            No

2    To be referred to the Reporter or not ?                          No

3    Whether their Lordships wish to see the fair copy
     of the judgment ?                                                No

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution              No
     of India or any order made thereunder ?

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                       GANGABEN JIVANBHAI RABARI
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR RASESH H PARIKH(3862) for the Petitioner(s) No. 1,2,3,4
MR.HEMANG H PARIKH(2628) for the Petitioner(s) No. 1,2,3,4
MR ROHAN SHAH, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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    CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                             Date : 22/08/2023

                            ORAL JUDGMENT

As the issue involved in the present petition is in narrow compass and covered by the decision of this Court, at the Page 1 of 11 Downloaded on : Sun Sep 17 02:05:29 IST 2023 NEUTRAL CITATION C/SCA/19426/2021 JUDGMENT DATED: 22/08/2023 undefined request of learned advocates appearing for the respective parties, the present petition is taken up for final hearing at the admission stage itself.

2. Rule returnable forthwith.

3. Learned Assistant Government Pleader Mr.Rohan Shah waives service of notice of Rule on behalf of respondents.

4. By way of this petition filed under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the orders passed by the revenue authorities dated 2.6.2021, 6.7.2019 and 2.1.2019, whereby the revenue authorities have initiated suo-motu proceedings under the provision of Section 79(A) of the Gujarat Land Revenue Code, 1879 (for short 'the Code') for breach of conditions and then, directed the land to be resumed in the name of the Government.

5. Brief facts of the case, in nutshell, are as under :

5.1 The subject matter of impugned order concerns land being old Revenue Survey No. 232 Paiki 1 (new Revenue Survey No. 413) admeasuring 1-43-00 Hector-Are-Sq. Mtrs. situated at Village : Deodarda, Taluka : & District : Patan.

5.2 The subject land is mutated in the name of Rabari Vasahat and vide Entry No. 486/4 mutated pursuant to the order passed by the Prant Officer in Land/SR/Vashi/732 dated 31.03.1968, the subject land was allotted to heirs of Rabari Haribhai Ramjibhai viz. Rabari Jivanbhai Haribhai.

NEUTRAL CITATION C/SCA/19426/2021 JUDGMENT DATED: 22/08/2023 undefined 5.3 At present, the subject land is mutated in the name of Petitioners who are heirs of Late Rabari Jivanbhai Haribhai as on 03.10.2017, he passed away.

5.4 From the date of allotment of the subject land to Late Rabari Jivanbhai Haribhai, till today, the subject land is being owned and possessed by Late Rabari Jivanbhai Haribhai and by his heirs i.e. present Petitioners. Late Rabari Jivanbhai Haribhai and present Petitioners personally cultivate the subject land.

5.5 That Late Rabari Haribhai Ramjibhai had brother named Rabari Karsanbhai Ramjibhai. Rabari Haribhai Ramjibhai expired before Rabari Karsanbhai Ramjibhai and since relationship between heirs of Rabari Haribhai Ramjibhai and Rabari Karsanbhai Ramjibhai was cordial, Rabari Karsanbhai Ramjibhai was acting as Administrator of the family.

5.6 It seems that the name of Late Rabari Karsanbhai Ramjibhai was mutated in Revenue Record of the subject land under caption of "cultivation and tenant" for the period 1977- 78 till 1983-84. At this stage, It is germane to note that the said village form records possession of Late Rabari Jivanbhai Haribhai. In fact, perusal of this village form, reveals that from 1984-85, the subject land was once again mutated in the name of Late Rabari Jivanbhai Haribhai.

5.7 That vide Mutation Entry No. 2061 dated 01.06.2018, names of Petitioners were mutated in the name of Late Rabari Jivanbhai Haribhai as he passed away on 03.10.2017.

NEUTRAL CITATION C/SCA/19426/2021 JUDGMENT DATED: 22/08/2023 undefined 5.8 On 16.07.2018, Mamlatdar, Patan, Respondent no. 4 herein wrote a letter to Respondent No.3 being JMN/Ganot/Vashi/476/2018 alleging breach of condition for grant of subject land. This reference by Respondent no. 4 is after 34 years from 1984, a period after which name of Rabari Karsanbhai Ramjibhai is not appearing in the Revenue Record.

5.9 Pursuant to the above letter of Respondent no. 4, the Respondent No.3 adjudicated the alleged breach of the condition being Sharatbhang/Case No. 2/2018-19 on 02.01.2019 and in view of the fact that name of Rabari Karsanbhai Ramjibhai appeared in the Revenue Record for the period 1977-78 to 1983-84, it was concluded that there is breach of condition and subject land is ordered to be vested with the Government.

5.10 The Order dated 02.01.2019 was challenged by the Petitioners before the Respondent No.2 being Appeal Case No. 13 of 2019. Vide Order dated 06.07.2019, without appreciating the contentions raised by Petitioners, Respondent No.2 upheld the order passed by the Respondent No.3 and rejected appeal of the Petitioners.

5.11 The Order dated 06.07.2019 was challenged by the Petitioners before the Respondent No.1 being MVV/JMN/PATAN/12/2020. Vide Order dated 02.06.2021, without appreciating the contentions raised by Petitioners, Respondent No.1 upheld the order passed by the Respondent Page 4 of 11 Downloaded on : Sun Sep 17 02:05:29 IST 2023 NEUTRAL CITATION C/SCA/19426/2021 JUDGMENT DATED: 22/08/2023 undefined No.2 and rejected appeal of the Petitioners.

5.12 Being aggrieved by the aforesaid, the petitioners have approached this Court by way of present Special Civil Application for appropriate reliefs.

6. I have heard learned advocate Mr.Rashesh Parikh for the petitioners and learned Assistant Government Pleader Mr.Rohan Shah for respondents.

7. Learned advocate for the petitioners, while assailing the orders passed by the revenue authorities, has made following submissions:

(i) Learned advocate for the petitioners submitted that the suo-motu proceedings initiated by the authorities for breach of condition under Section 79 of the Code after a period of almost 34 years. Learned advocate, therefore, submitted that initiation of suo-motu proceedings after such an inordinate delay cannot be said to be permissible and thereby, the impugned orders passed by the revenue authorities may be quashed and set aside. Learned advocate further submitted that considering the length of delay, the same cannot be said to be reasonable and thereby, the impugned orders require to be set aside.

(ii) Learned advocate for the petitioner further submitted that while passing the impugned orders, the authorities have not appreciated the facts in its true perspective and that has resulted into serious miscarriage of justice.

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(iii) Learned advocate for the petitioners submitted that mutation of name of Rabari Karshanbhai Ramjibhai was due to inadvertence and that too, for a limited period from 1977 to 1984.

(iv) Learned advocate for the petitioners submitted that the heirs of Rabari Karshanbhai Ramjibhai have in unequivocal terms stated that neither they nor their father are having the subject land as tenant and only because they are one family and having adjoining land, this inadvertent recording of name of Rabari Karshanbhai Ramjibhai could have been crept in. Learned advocate further submitted that from the year 1984 till 2018, when the suo-motu proceedings were initiated, the name of the present petitioners being heirs of Rabari Jivanbhai Haribhai are there in the revenue records and thus, the authorities ought to have considered the said fact and ought not to have passed the impugned orders.

(v) To substantiate the aforesaid contentions, learned advocate for the petitioners has placed reliance on the judgment of the Coordinate Bench of this Court in case of Rajeshbhai Vitthalbhai Patel v. State of Gujarat, reported in 2016 (4) GLR 3499.

7.1 By making above submissions, learned advocate urged this Court to allow the present petition.

8. Per contra, learned Assistant Government Pleader Mr.Rohan Shah, while supporting the impugned orders, has made following submissions :

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(i) Learned Assistant Government Pleader has vehemently opposed the present petition contending, inter alia, that the orders passed by the revenue authorities are perfectly justified and that no interference is required to be made by this Court.

(ii) Learned Assistant Government Pleader further submitted that admittedly, for the period from 1977 to 1984, the name of Rabari Karshanbhai Ramjibhai was being reflected as cultivator and the tenant and thereby, the land being new tenure land, the condition is said to have breached and thereby, the suo-motu proceedings initiated by the revenue authorities are perfectly justified and thereby, no interference is called for.

(iii) Learned Assistant Government Pleader, however, could not dispute the ratio laid down by this Court in the case of Rajeshbhai Vitthalbhai Patel (Supra) and also could not dispute the fact that initiation of suo-motu proceedings by the revenue authorities after a period of 34 years.

8.1 By making above submissions, learned Assistant Government Pleader, Mr.Rohan Shah requested this Court to pass appropriate orders.

9. I have heard learned advocates appearing for the respective parties and have gone through the material produced on record. No other and further submissions have been canvassed by the learned advocates appearing for the Page 7 of 11 Downloaded on : Sun Sep 17 02:05:29 IST 2023 NEUTRAL CITATION C/SCA/19426/2021 JUDGMENT DATED: 22/08/2023 undefined respective parties.

10. Considering the submissions made by learned advocates appearing for the respective parties, the only question that arises for consideration of this Court is whether the impugned orders passed by the revenue authorities in exercise of suo- motu powers, after the delay of 34 years, can be justified?

11. The aforesaid question, in my opinion, is no more res- integra. The Coordinate Bench of this Court has in case of Rajeshbhai Vitthalbhai Patel (Supra), in no uncertain terms, held that exercise of suo-motu powers for the breach of Section 79A, after a period of 8 years, cannot be said to be reasonable period. At this stage, it would be apt to take note of the relevant observations made in Para.4, 5 and 6, which reads, thus:

"4. In the instant case, it appears that it is not disputed that the land in question originally allotted to Bhikhabhai Dhulabhai, was a new tenure land. It is also not disputed that the order passed by the Civil Court granting probate in favour of the petitioner, was not challenged by any of the respondents Nos. 6 to 9, who were the legal heirs of deceased Bhikhabhai. It is also not disputed that on the basis of the said probate, the mutation entry being No. 7177 was made on 20.11.1994 which came to be certified on 30.12.1994 by the Mamlatdar, after issuance of notice to the said respondents under Section 135(d) of the Revenue Act.

Now, it appears that the said entry was sought to be reviewed by the Deputy Collector, after almost a period of eight years, by issuing notice on 30.12.2002 calling upon the petitioner and the respondents Nos. 6 to 9 to show cause as to why the land should not be vested in the Government under Section 79-A of the Revenue Act, there being violation of the condition of the grant on which the land was allotted to the original allottee Bhikhabhai. At this juncture, it is pertinent to mention that as per the settled legal position, Page 8 of 11 Downloaded on : Sun Sep 17 02:05:29 IST 2023 NEUTRAL CITATION C/SCA/19426/2021 JUDGMENT DATED: 22/08/2023 undefined when the period of limitation is not prescribed under the statute, the competent authority is required to exercise the powers within reasonable time. The beneficial reference of the decision in the case of State of Punjab versus Bhatinda District Cooperative Mulk Producers Union Ltd., reported in 2007 (11) SCC 363 be made in which it has been held in para 18 and 19 as under : -

"18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors.

19. Revisional jurisdiction, in our opinion should ordinarily be exercised within a period of three years having regard to the purport in terms of the said Act. In any event, the same should not exceed the period of five years. The view of the High Court, thus, cannot be said to be unreasonable. Reasonable period, keeping in view the discussions made hereinbefore, must be found out from the statutory scheme. As indicated hereinbefore, maximum period of limitation provided for in subsec. (6) of Sec. 11 of the Act is five years."

5. In the instant case, the revisional power was sought to be exercised by the Deputy Collector after a period of 8 years of the entry certified by the Mamlatdar, which could not to be said to be a reasonable period by any stretch of imagination. Though the court finds substance in the submission of learned AGP that assignment made in the Will, would tantamount to transfer, in view of the decision rendered by the Division Bench in the case of Rajenbhai Baldevbhai Shah (supra), the Court is not inclined to deal with the said issue at this juncture. The Court is of the opinion that the respondent - Deputy Collector had exercised the powers of revision after an unreasonable delay of 8 years. The said order of Deputy Collector having confirmed by the Gujarat Revenue Tribunal, both the orders deserve to be set aside.

6. In that view of the matter, the impugned order dated 25.11.2003 passed by the Deputy Collector, and the orders dated 11.06.2008 and 28.02.2007 passed by the Gujarat Revenue Tribunal are hereby quashed and set aside."

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12. Keeping in mind the aforesaid law laid down by the Coordinate Bench of this Court and keeping in mind the facts of the present case, admittedly, the suo-motu proceedings initiated by the Deputy Collector under the provision of Section 79A of the Code is after a period of 34 years. At this juncture, it is also required to be noted that at the time when the suo-motu proceedings were initiated by the Deputy Collector, Patan, the name of the heirs of Jivanbhai Rabari were being reflected in the village form No.7/12 since 1984. It is also required to be noted that so called breach was for a limited period between 1977 to 1984, that too due to inadvertent mistake.

13. In that view, in my considered opinion, the revenue authorities could not have exercised their suo-motu powers beyond the reasonable period of time. As has been discussed herein-above, the exercise of suo-motu powers after a period of 34 years, cannot be said to be a reasonable period of time and accordingly, the impugned orders dated 2.6.2021, 6.7.2019 and 2.1.2019 passed by the revenue authorities deserve to be quashed and set aside.

I answer the question accordingly.

14. For the foregoing reasons, the present Special Civil Application is hereby allowed. The impugned orders dated 2.6.2021, 6.7.2019 and 2.1.2019 passed by the revenue Page 10 of 11 Downloaded on : Sun Sep 17 02:05:29 IST 2023 NEUTRAL CITATION C/SCA/19426/2021 JUDGMENT DATED: 22/08/2023 undefined authorities are hereby quashed and set aside. Rule is made absolute to the aforesaid extent.

(NIRAL R. MEHTA,J) V.J. SATWARA Page 11 of 11 Downloaded on : Sun Sep 17 02:05:29 IST 2023