C/SCA/4821/2019 ORDER DATED: 20/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4821 of 2019
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RABIYABEN JAMALBHAI MOTHIYA
Versus
STATE OF GUJARAT
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Appearance:
MS MEGHA JANI WITH MR. AADIT R SANJANWALA(9918) for the
Petitioner(s) No. 1,2,3,4,5,6,7
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
UNSERVED REFUSED (N) for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 20/02/2023
ORAL ORDER
1. Rule. Learned AGP waives service of notice of rule for the respondent-State.
2. The matter is taken up for final hearing and disposal since a short issue is involved.
3. The respondent no.5 has refused to accept the process of this Court.
4. The present petition has been filed seeking the following prayers:-
"8(a) That the Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any any other appropriate writ, order of direction quashing and setting aside order dated 09.07.2018 passed by Secretary, Department of Revenue (Appeals), Ahmedabad in Revision Application No.3 of 2018 (Annexure-A) and be pleased to grant application of the petitioners for change of use of the said land to Non- Agriculture in terms of their Application dated 20.06.2015;
(b) That the Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order of direction quashing and setting aside order dated 31.05.2017 passed by Dy. Collector, Gir-Somnath in Fragmentation Case No.5 of 2016 Page 1 of 10 Downloaded on : Fri Feb 24 20:36:00 IST 2023 C/SCA/4821/2019 ORDER DATED: 20/02/2023 (Annexure-B)"
5. The brief facts of the case are as under:-
5.1. The predecessor of the petitioners viz. Jamal Ismailbhai Mothiya purchased the land admeasuring 1922 sq. mtrs. bearing Survey No.140 Paiki 1 situated at Village Prabhas Patan, Taluka Veraval, District Gir Somnath, (hereinafter referred to as "the said land") by a registered Sale Deed dated 24.06.2004. Mutation Entry No. 8072 was posted on 28.06.2004 and certified on 22.09.2004 to give effect to the above Sale Deed. Thereafter, on the demise of Jamal Ismailbhai Mothiya, Mutation Entry No.11458 was posted on 28.01.2011 to mutate the names of the Petitioners in the revenue records of the said land as the legal heirs of Jamal Ismailbhai Mothiya.
5.2. The said land is an old tenure land. On 20.06.2015, the petitioners filed an application seeking change of tenure to non- agricultural use for residential purpose. By an order dated 07.09.2015, the Collector, Gir- Somnath rejected the Petitioners' application on the purported ground that the said land, which was purchased by the petitioners' predecessor was a fragment under the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, 1947 ('the Fragmentation Act') and the aforesaid Mutation Entry no. 8072 was certified on the condition that the land would be consolidated. The letter also records that prior to sale of the said land in favour of Jamal Ismailbhai Mothiya in 2004, two sale deeds were executed and Mutation Entries 7678 and 7749 were posted to mutate the sale of the said land in favour of the Petitioners predecessors- in-title on the condition that the said land would be converted into N.A. Land, which conditions were breached and no steps were taken by the Page 2 of 10 Downloaded on : Fri Feb 24 20:36:00 IST 2023 C/SCA/4821/2019 ORDER DATED: 20/02/2023 Petitioners predecessors- in-title to change the tenure of the said land.
5.3. On 03.02.2016, the petitioners filed an application for review of Collector's decision dated 07.09.2015, which came to be rejected by the Collector in his decision indicated vide letter dated 28.04.2016.
5.4. On 21.06.2016, the petitioners filed Revision Application No. 8 of 2016 before the Special Secretary (Appeals) challenging the 2016/A Collector's decision dated 28.04.2016. By an order dated 10.04.2017, the Special Secretary (Appeals) set aside the Collector's order dated 28.04.2017 and remanded the matter to the Collector, Gir-Somnath to consider the matter afresh. The remand was ordered on the basis of the petitioners' contention that in similar cases, lands of smaller area have been converted into N.A. lands and the same benefit ought to be given to the petitioners.
5.5. It is pertinent to note that the parcels of lands surrounding the petitioners land, which are smaller in size than the petitioners land, have been granted N.A. permission.
5.6. It is the case of the petitioner that the respondent no.5-Abdulbhai Husenbhai Malik filed a frivolous suit viz. Special Civil Suit No. 115 of 2017 on 30.07.2017 claiming to be the occupant of the said land since 2006 and inter alia seeking orders to restrain the Petitioners from dispossessing him and/or changing the tenure of the said land to non- agricultural use for residential purposes. By an order dated 31.08.2017, the Trial Court issued notice to the petitioners without granting any reliefs. The said Exhibit 5 Application was pending as on the date of filing of this petition.
Page 3 of 10 Downloaded on : Fri Feb 24 20:36:00 IST 2023C/SCA/4821/2019 ORDER DATED: 20/02/2023 5.7. As per the order dated 10.04.2017, the matter was remanded to the Collector and registered as Case No.Land/1/3/remand/49/2017. By an order dated 20.04.2018, the Collector once again refused to grant N.A. permission inter alia on the purported ground that the instances of similar cases where N.A. permission is granted for lands of smaller area were not produced.
5.8. The petitioners thereafter filed Revision Application No. 3/2018 before the Secretary, Department of Revenue (Appeals). By an order dated 07.09.2018, the Special Secretary upheld the Collector's order dated 20.04.2018 inter alia on the purported ground that the provision of the Fragmentation Act have been violated in view of the order dated 31.05.2017 passed by the Dy. Collector, Veraval.
5.9. In the meantime, the Deputy Collector, Veraval issued a show cause notice dated 17.10.2016 alleging breach of the provisions of the Fragmentation Act on the ground that the said land, which was purchased by the Petitioners predecessor in 2004 was a fragment under the Fragmentation Act. In the said proceedings, the Deputy Collector, Veraval passed an order dated 31.05.2017 inter alia holding that the petitioners predecessor had violated provisions of the Fragmentation Act and in view thereof imposed a penalty of Rs. 61,620/- and to bring the land to its original position prior to posting of Mutation Entry No. 7678. The aforesaid order was passed on the ground that the said land, which was purchased by the petitioners' predecessor vide sale deed dated 24.06.2004, was smaller than the minimum requirement of 2000 sq. mtrs, Page 4 of 10 Downloaded on : Fri Feb 24 20:36:00 IST 2023 C/SCA/4821/2019 ORDER DATED: 20/02/2023 as per circular dated 10.06.2013.
6. Learned advocate Ms.Megha Jani appearing for the petitioners has submitted that the authorities below failed to appreciate that the condition to consolidate the said land in Mutation Entry No. 8072 is itself illegal and non-est as the Mamlatdar has no authority to impose conditions in terms of the Fragmentation Act, while certifying a mutation entry under the Gujarat Land Revenue Code, 1879. Moreover, it is submitted that the condition requiring the landholder to consolidate his holding with others is ex-facie illegal, unreasonable, unworkable and non-est. Such a condition ought to have been ignored by the authorities while granting N.A. permission.
6.1. Learned advocate Ms.Jani has further submitted that the authorities have ignored the mutation entry nos.7678 and 7749 with respect to the land in question, which was in favour of the petitioners' predecessors-in- title and certified with the condition that the tenure of the said land would be changed for non-agricultural use and thus, the application for change of tenure ought to have been granted. She has further submitted that the respondent authorities have granted NA permission for several lands of smaller size surrounding the said land even the operation of the Fragmentation Act and the petitioners should have been extended such benefit.
6.2. Learned advocate Ms.Jani has further submitted that the Deputy Collector has issued a show cause notice dated 17.10.2016 for initiating the proceedings under the Fragmentation Act after a period of almost 14 years. It is submitted that thereafter, vide registered sale deeds, which Page 5 of 10 Downloaded on : Fri Feb 24 20:36:00 IST 2023 C/SCA/4821/2019 ORDER DATED: 20/02/2023 were executed and an entry no.7749 was also mutated by the petitioners' predecessors, and subsequently, by a sale deed dated 28.06.2004, the petitioners have occupied the same since 14 years. Thus, it is submitted that exercise of powers under Fragmentation Act by the Deputy Collector is beyond reasonable period with regard to subject property. She has further submitted that the execution of the sale deed dated 28.06.2004 did not violate the provisions of the Fragmentation Act. Thus, it is submitted that the authorities have seriously erred in taking into the sale deed dated 28.06.2004 under revision, which is subsequent to the alleged violation of the Fragmentation Act of family partition in the year 2001.
7. Finally, the learned advocate Ms.Jani, has submitted that even if it is presumed that the provisions of the Fragmentation Act are violated, as per the circular dated 16.06.2013, the minimum area stipulated for the purpose of the Fragmentation Act is 2000 sq.mtrs. and the land in question admeasures 1922 sq.mtrs., which falls marginally short of the minimum requirement and hence, the same cannot in any manner hamper the agricultural activities. Thus, she has submitted that the impugned orders may be set quashed and set aside. In support of her submissions, she has placed reliance on the judgment of the Division Bench of this Court dated 29.07.2015 passed in Letters Patent Appeal No.798 of 2011.
8. Per contra, while vehemently opposing the writ petition, learned AGP Mr.Kanara has submitted that the impugned orders do not require any interference since admittedly the land in question is in violation of the Fragmentation Act since 2001 and any subsequent purchase could not have been effected in violation of the provisions of the Act. It is submitted that when the authority i.e. the Deputy Collector noticed the Page 6 of 10 Downloaded on : Fri Feb 24 20:36:00 IST 2023 C/SCA/4821/2019 ORDER DATED: 20/02/2023 violation of the provisions of the Fragmentation Act, a show cause notice dated 17.10.2016 was issued and ultimately, after hearing the petitioners, by the impugned order dated 31.05.2017 it was held by the Deputy Collector that the petitioners' predecessors had violated the provisions of the Fragmentation Act and the authorities have imposed a penalty of Rs.61,620/- and to bring the land to its original position prior to the entry no.7678. Thus, the impugned orders may not be quashed and set aside.
9. I have heard the learned advocates appearing for the respective parties.
10. It is established fact from the pleadings is that the Deputy Collector has issued a show cause notice dated 17.10.2016 to the petitioners on the premise that the predecessors-in-title were holding the land in violation of the Fragmentation Act since 2001.
11. At this stage, it would be apposite to refer to the observation made by the Division Bench of this Court rendered in Letters Patent Appeal No.798 of 2011, more particularly paragraph no.12, which reads as under:-
"12. We may first consider the question for interference to the order passed by the learned Single Judge. There cannot be second opinion on the aspect that if two views are possible and the learned Single Judge has taken one view, the Division Bench of this Court in exercise of the jurisdiction under Letters Patent would be loathe to interfere and may not entertain the appeal, but in a case where only one view was possible or that well settled legal position is not considered, which goes to the root of the matter for the jurisdiction of the authority, such would be an appropriate case for interference for exercise of the jurisdiction under the Letters Patent. Examining the case on the said aspects, we find that as per the above referred decisions of the Apex Court, the limitation provided for initiation of the action or the consideration of the reasonable period for initiation Page 7 of 10 Downloaded on : Fri Feb 24 20:36:00 IST 2023 C/SCA/4821/2019 ORDER DATED: 20/02/2023 of the action or the initiation of bar operating of delay for the action are jurisdictional aspects on the power of the authority which has initiated the action. If as per the well settled principles of law, the bar of delay operates against the exercise of the jurisdiction or that the initiation of the action is beyond reasonable of the action period as per the well settled principles of law, the action can be said as without jurisdiction. If an action is without jurisdiction, as observed by the Apex Court in the above referred decision in the case of State of Punjab (supra), the petition under Article 226 of the Constitution can be maintained and the jurisdiction of this Court under Article 226 of the Constitution can be invoked. If the action is decided on the ground of jurisdiction and found to be without jurisdiction by the Court while undertaking judicial scrutiny under Article 226 of the Constitution, the only view possible is that of the action without jurisdiction. If the action was without jurisdiction, we do not see that it would fall in the arena of discretion to be considered while exercising the power under Article 226 of the Constitution. We may record that the contention is not based on the conduct on the part of the petitioners which may lead the Court to decline the interference but the contention is on the ground that two views were not possible as against the settled legal position on the point of reasonable period and the delay for initiation of the action. Hence, we find that it is a fit case for interference order passed by the learned Single Judge and it cannot be said to be outside the jurisdiction of the appellate power of the Division Bench of this Court in Letters Patent as sought to be canvassed."
12. It is also not in dispute that pursuant to the sale deed dated 24.06.2004, a mutation entry no.8072 was posted on 28.06.2004 and certified on 22.09.2004 for the land admeasuring 1922 sq.mtrs. The petitioners filed an application seeking change of tenure of land to non- agricultural use for residential purpose on 20.06.2015, the respondent authorities have woken up from slumber and have initiated the proceedings under the provisions of the Fragmentation Act and also imposed a penalty of Rs.61,200/- on the petitioners and ordered the land to be restored to its original status.
13. Thus, the respondent authorities have in fact questioned the title of the land, which the predecessor was holding and who has sold to them Page 8 of 10 Downloaded on : Fri Feb 24 20:36:00 IST 2023 C/SCA/4821/2019 ORDER DATED: 20/02/2023 vide registered sale deed dated 28.06.2004 , no action was taken when such entry with regard to registered sale deed was mutated and certified on 22.09.2004 being an entry no.8072.
14. At this stage, it would be apposite to refer the observation made by this Court rendered in Special Civil Application No.1229 of 2016, more particularly paragraph no.10, which reads as under:-
"10. It is also pertinent to note that the judgement, on which the SSRD has placed reliance, is also overruled subsequently in the case of Valjibhai Jagjivanbhai Vs. State of Gujarat, 2005 (2) GLH 34. The Division Bench of this Court has held thus:
"23. Looking to the aforesaid different situations, there is no- doubt in our mind that even the void transaction under section 9(1) if allowed to remain effective for considerably long period, the authority named therein will be precluded from initiating proceedings to annul it. The ratio laid down by the Apex Court in the decisions cited by Mr. Patel clearly states that even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed to remain for a considerable period and with the passage of time it brings about several changes, creating valuable rights in favour of considerable section of people, it is difficult to accept the proposition that despite the change the Collector would be entitled to exercise power under sub-
section (3) of section 9 of the Act. Similar observations can also be made with regard to the land wherein no change is brought about, but number of years have passed after the transfer against the provisions of the Act has taken place. In our opinion when the things have been allowed to remain as such for years together, the purchaser cannot be deprived of his possession so as to render indirect benefit to the seller who was equally responsible for entering into such illegal transaction. Thus, in our view, when the authority had considerable opportunities to know about the transaction and despite that, has not taken any action thereon for years together, such authority cannot be allowed to exercise powers conferred upon it at a belated stage. The concept of reasonableness of time will equally apply in such cases. We, therefore, hold that even powers conferred upon the Collector under sub-sections (2) and (3) of section 9 are required to be Page 9 of 10 Downloaded on : Fri Feb 24 20:36:00 IST 2023 C/SCA/4821/2019 ORDER DATED: 20/02/2023 exercised within a reasonable time."
15. Hence, the writ petition succeeds. The impugned orders are hereby quashed and set aside since it was not open for the respondents to exercise powers after a delay of 14 days. It will be open for the petitioner to file fresh application seeking NA permission, which shall be decided in light of the observations made by this Court by the respondent authorities. Rule is made absolute.
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