Gujarat High Court
Dhirubhai Veerjeebhai Patel vs The State Of Gujarat on 30 November, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19109 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may YES
be allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the NO
fair copy of the judgment ?
4 Whether this case involves a NO
substantial question of law as to the
interpretation of the Constitution of
India or any order made thereunder ?
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DHIRUBHAI VEERJEEBHAI PATEL & 1 other(s)
Versus
THE STATE OF GUJARAT & 6 other(s)
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Appearance:
JAY R TALAVIA(9311) for the Petitioner(s) No. 2
MR. BHAUMIK DHOLARIYA(7009) for the Petitioner(s) No.
1.1,1.2,1.3,1.4,1.5,2
DECEASED LITIGANT for the Respondent(s) No. 5
MR ADITYASINH JADEJA ASSISTANT GOVERNMENT PLEADER for
the Respondent(s) No. 1,2
MR P P KASVALA(2404) for the Respondent(s) No.
3,4,5.1,5.2,6,7
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 30/11/2023
ORAL JUDGMENT
1. By way of this petition, the petitioners have challenged the order dated 9.4.2001 passed by the Collector, Amreli and also order dated Page 1 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined 8.7.2005 passed by the Joint Secretary (Appeals), Ahmedabad in Revision Application No.8 of 2001.
2. Vide order dated 9.4.2001, the Collector, Amreli held that the transaction of purchase of land by the petitioner related to survey No.65 and 132, of Village Thordi, Taluka Savarkundla, District : Amreli (hereinafter referred to as 'subject land') to be invalid and quashed and set aside the mutation entries No.1016 dated 27.12.1990 and entry No.1017 dated 27.11.1990 as well as entry No.1134 dated 8.6.1994 and entry No.1164 dated 13.6.1997 and further directed the land to be restored in the name of original owner of the land in question. The aforesaid order was carried in revision by the petitioner by way of preferring Revision Application No.8 of 2001 linked with Revision Application No.9 of 2001 and vide order dated 8.7.2005, the Joint Secretary, Revenue Department (Appeals) while rejecting the revision application preferred by Page 2 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined the petitioners confirmed the order dated 9.4.2001 passed by the Collector, Amreli.
3. In the petition, notice for final disposal was issued on 20.9.2005 and thereafter, vide order dated 13.2.2006, rule was issued and the same was made returnable on 13.3.2006 and while issuing rule, the effect and implementation of the impugned orders were stayed till final disposal by the Co-ordinate Bench. Thereafter, the matter was adjourned from time to time and was taken up for final hearing today.
4. I have heard learned advocate Mr. Bhaumik Dholariya appearing for the petitioners, learned Assistant Government Pleader Mr. Adityasinh Jadeja appearing for the respondents No.1 and 2 and learned advocate Mr. Prakash Kasvala appearing for the respondent Nos.3, 4, 6 and 7.
5. Brief facts giving rise to the present petition are as under :-
5.1 At the outset, it was submitted by Page 3 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined learned advocate Mr. Bhaumik Dholariya that though the impugned order dated 9.4.2001 is in respect of two survey numbers of land i.e. Survey No.65 and 132 of village Thoradi, Taluka : Savarkundla, District : Amreli, the present petition is confined only to transaction related to survey No.132 as the petitioners are not the purchasers of survey No.65 situated at village Thoradi.
5.2 The land bearing revenue survey No.132 of mouje Thordi, Taluka Savarkundla, District :
Amreli was running in the name of Shiv Prasad Guru Bhagvat Prasad in the revenue records. Vide two different sale deed executed on 15.11.1990, the petitioner Nos.1 and 2 both purchased two different parcels of land bearing survey No.132 paiki, mouje : Thordi, Taluka : Savarkundla, District : Amreli from Shiv Prasad Guru Bhagvat Prasad through two separate registered sale deeds, for which two revenue entries Nos.1016 and 1017 came to be mutated on 15.11.1990.Page 4 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023
NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined 5.3 After the mutation of the aforesaid entries in the year 1990, after about eleven years the Collector, Amreli, issued a show cause notice dated 23.1.2001, under Section 108(6) of the Gujarat Land Revenue Rules, 1972 and took the entry Nos.125, 161, 1016, 1017 and other entries into suo-motu revision, alleging that those entries were not in consonance with the provisions of Land Revenue Code, as the trust land were sold to the petitioners without obtaining prior permission of the Charity Commissioner as required under Section 36 of the Bombay Public Trust Act. Pursuant to the proceedings which took place in respect of the aforesaid show cause notice, vide order dated 9.4.2001, the Collector, Amreli declared the sale transaction of the subject land in favour of the petitioner to be invalid and set aside entry Nos.1016 and 1017 along with other entries in respect of other sale transactions, which were also subject matter of the show cause notice.Page 5 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023
NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined 5.4 The petitioners challenged the aforesaid order dated 9.4.2001 passed by the Collector, Amreli before the Joint Secretary, Revenue Department (Appeals) by way of Revision Application No.8 of 2001. However, the Joint Secretary, Revenue Department (Appeals) rejected the revision application preferred by the petitioner and confirmed the order dated 9.4.2001 passed by the Collector, Amreli vide order dated 8.7.2005 and hence, both the orders dated 9.4.2001 and 8.7.2005 are subject matter of challenge by way of this petition.
6. Learned advocate Mr. Bhaumik Dholariya appearing for the petitioners made following submissions :-
6.1 Suo-motu proceedings were initiated after delay of more than ten years which cannot be said to be reasonable period as held by catena of judgments of this Court, the reasonable period can be said to be maximum Page 6 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined three years but not ten years in any case. 6.2 The Collector while exercising the powers under Rule 108(6) of the Rules cannot decide the validity of breach of other statute. 6.3 Cross utilization of powers at the hands of Collector is not permissible and as the Collector has exercised the cross utilization of powers, the impugned orders are without jurisdiction and therefore, required to be quashed and set aside.
6.4 The exercise carried out by the Collector while passing the impugned order amongst to surpassing of powers of Charity Commissioner vested under the Bombay Public Trust Act.
6.5 In RTS proceedings, the Collector cannot declare the sale as invalid as such powers are vested only with the Courts and the Civil Court and the Collector being a quasi judicial authority could not have decided the Page 7 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined question about validity of the transaction. As the petitioners are bonafide purchasers and the suo-motu proceedings are initiated after the death of Shiv Prasad Guru Bhagvat Prasad, who passed away on 17.10.2000. The show cause notice is vague as no survey number is mentioned in the show cause notice.
6.6 The show cause notice was in respect of mutation entries however, at the end of the proceedings, the Collector invalidate the sale transaction and therefore, the order passed by the Collector dated 9.4.2001 is beyond the scope of show cause notice and therefore, the impugned order dated 9.4.2001 is illegal and requires to be quashed and set aside and subsequent order passed by the Joint Secretary confirming the aforesaid order is also illegal and therefore, both the orders are required to be quashed and set aside.
6.7 In support of the aforesaid submissions learned advocate Mr. Bhaumik Dholariya relied Page 8 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined upon the judgment of this Court in case of Rinki Shashikant Gandhi Versus Mamlatdar Vadodara Taluka reported in 2012(2) GLR 1275 and submitted that such exercise of powers of suo-
motu revision was held to be unreasonable after delay of four years whereas in the instant case such powers are exercised after delay of ten years and therefore, such powers are exercised beyond reasonable period. By relying upon the said judgment, he submitted that cross utilization of powers by taking into consideration the fact that the sale is invalid as the prior permission of the Charity Commissioner in respect of sale of alleged trust land is not taken and therefore, the sale is invalid amongst to cross utilization of powers, which is not permissible in RTS proceedings as per the aforesaid judgment and therefore, he prayed for quashing and setting aside of both the impugned orders.
7. Learned Assistant Government Pleader Mr. Page 9 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined Adityasinh Jadeja states that the petitioners did not approach the Civil Court challenging the order passed by the Collector whereby the civil rights of the petitioners were taken away by holding the sale transaction to be invalid and therefore, the petition is required to be dismissed on the ground of non-availment of alternative efficacious remedy. 7.1 Learned Assistant Government Pleader Mr. Adityasinh Jadeja could not point out anything either from the record or from any provisions of law or judgment indicating that powers exercised by the Collector, Amreli after delay of ten years can be said to be within some reasonable time. However, learned Assistant Government Pleader Mr. Jadeja submitted that as the illegality was noticed by the Collector, Amreli that sale transactions on the basis of which the revenue entries are mutated is contrary to the provisions of Bombay Public Trust Act, the show cause notice was issued and Page 10 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined after hearing the petitioner, as there was no prior permission from the Charity Commissioner, the sale was rightly held to be invalid.
8. Learned advocate Mr. Prakash Kashvala appearing for the private respondents who according to learned advocate Mr. Kashvala are the villagers submitted that both the orders passed by the authority viz. the Collector and the Joint Secretary are absolutely just, legal and proper and as by way of those orders the interest of the beneficiaries of the trust is taken care of, the orders passed by the Collector and the Joint Secretary impugned in this petition may not be interfered with and the petition may be dismissed.
9. I have heard learned advocates appearing for the parties and perused the record. Upon perusal of record, I found that two parcel of land bearing survey No.132 of the subject land was purchased by the petitioners No.1 and 2 by way of two separate sale deeds in the year 1990 and Page 11 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined consequential revenue entries were also mutated as entry No.1016 and 1017. The petitioner continued to enjoy the possession of the aforesaid land uninterruptedly till the show cause notice initiating suo-motu revision were served upon them. It is an undisputed fact that the show cause notice was issued to the petitioner on 23.1.2001 i.e. after delay of eleven years after the sale deed was executed in the year 1990.
9.1 Further, the record also indicates that what was considered by the Collector while holding the sale transaction in favour of the petitioner as invalid was that the petitioners did not obtain prior permission from the Charity Commissioner to purchase the land which belongs to the trust. However, there is no justification coming forward from any of the orders either by the Collector or by the Joint Secretary that which statute provides the quasi judicial authority to decide the question about validity Page 12 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined of a sale transaction as the same would fall within the domain of judicial proceedings. 9.2 In case of Rinki Shashikant Gandhi Versus Mamlatdar Vadodara Taluka reported in 2012(2) GLR 1275 (Supra) more particularly, in paragraph No.11 of the said judgment, the Court has observed as under :-
"11. It cannot be lost sight of, that proceedings were initiated at the behest of respondent No.4 after five years of execution of the Sale Deed and four years of the registration of the said document. In the interregnum, respondent No.4 sat silently, without any demur. The period of limitation prescribed for filing an appeal under sub-rule (5) of Rule 108, is 60 days. The law is now settled that proceedings cannot be initiated after an unreasonable period of time. What constitutes a reasonable period of time is to be seen from the facts and circumstances of the case."
9.3 As regards the contentions of cross utilization of powers, the Court observed in paragraphs No.22 to 24 as under :-
"22. The nature of the power to be exercised by the Collector under RTS proceedings is clear from sub- Rule (6) of Rule 108 reproduced hereinabove. As already held by this Court, the said power Page 13 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined does not extend to directing forfeiture of the land in question. A more important aspect of the matter is : under which proceedings is the Collector empowered to exercise the power conferred by Rule 108(6)? Under this sub-rule the Collector is exercising power under RTS proceedings regarding disputed mutation entries and certainly not under the provisions of the Fragmentation Act. The impugned order of the Collector very clearly reveals that he has come to the conclusion that the sale transaction between the petitioner and respondent No.4 is hit by the provisions of the Fragmentation Act, and on this ground has directed forfeiture of the land to the State Government.
23. The Fragmentation Act is a self- contained Code that lays down a detailed procedure to be followed by the competent authority in the event that its provisions are found to be violated. It also envisages giving of notice to the person concerned. The circumstances under which the fragment of land shall vest in the State Government is also laid down. It is significant to note in the present case, that no proceedings, whatsoever, under the Fragmentation Act have been initiated against the petitioner. The proceedings initiated by respondent No.4 are RTS proceedings, under the Gujarat Land Revenue Rules, 1972. In exercise of pwer under sub-rule (6) of Rule 108 in RTS proceedings, the Collector cannot exercise power under the Fragmentation Act. Being a quasi judicial authority, the scope of exercise of power by the Collector is confined to the extent permitted by sub- Rule (6) of Rule 108. He is not empowered to transgress the limits of the power vested in him under RTS proceedings, as the power to be exercised by him is a Page 14 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined statutory power. It may be possible that the Collector was under the mistaken notice that the power he exercises is inherent in his position or designation, as Collector. If it is so, such a notion is an absolutely erroneous one. The Collector cannot, by virtue of his position or designation, exercise power under another enactment when he is dealing with a matter under a different enactment. The position of law in this regard is no longer res integra.
24. In Evergreen Apartment Co-operative Housing Society v. Special Secretary, Revenue Department, Gujarat State (Supra), this Court has held :
" 12 **** **** ***** So the entire inquiry and revisional power has to proceed under the Bombay land Revenue Rules and not under any enactments like the Bombay Tenancy and Agricultural Lands Act, Urban Land (Ceiling and Regulation) Act or Bombay Prevention of Fragmentation and Consolidation of Holding Act. It is quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue record have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by competent authorities Page 15 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined under special enactments.
Independently the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transaction recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Thus on this second ground also the orders of the Collector and the Additional Chief Secretary appear to be beyond their jurisdiction. The Additional Chief Secretary has held that the sale by auction was not consistent with the provisions of Section 27 of the Urban Land (Ceiling and Regulation) Act. Section 27 relates to prohibition of transfer of any urban land with a building thereon. Apart from legal position that Section 27 has been struck down as ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in the present case. Thus, the order of the revisional authority has proceeded on a misconception of relevant legal provisions also."
(emphasis supplied)"
9.4 From the aforesaid observations made in paragraph No.11 and 22 to 24, it is clear that RTS proceedings cannot be initiated beyond a Page 16 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined reasonable period. In case of Rinki Shashikant Gandhi (Supra) the initiation of RTS proceedings after five years of execution of sale deed and four years of registration of the said document were held to be initiated beyond a reasonable period of time. In the instant case, RTS proceedings were initiated after a period of almost more than ten years. Further from the observations made in paragraph No.22 to 24, it is clear that cross utilisation of powers by revenue authority is impermissible and thereby to hold the action to be invalid. Further, on perusal of record, the Court finds that this is the only reason that the sale transaction in favour of the petitioner is in violation of the provisions of Bombay Public Trust Act as the prior permission of the Charity Commissioner was not sought by the petitioner before purchasing the land and therefore, the transaction was held to be invalid and entries were cancelled. 9.5 Upon inquiry from the Court, learned advocate Mr. Dholaria as well as learned Page 17 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined advocate Mr. Prakash Kashvala, both submitted that till date there is no civil suit whereby the aforesaid transaction in favour of the petitioner is challenged on the ground that prior permission of the office of the Charity Commissioner is not sought or any other ground and therefore, in absence of there being any challenge to the aforesaid sale deed and in absence of there being any judicial order invalidating the aforesaid transfer in favour of the petitioner, the Collector being a quasi judicial authority was not justified in holding the transfer invalid by passing the impugned order, even the Joint Secretary also has committed an order by confirming the aforesaid order.
10. In view of above, the petition succeeds. The impugned orders are required to be quashed and set aside on the ground of exercise of powers after unreasonable delay of ten years as well as on the ground of cross utilization of powers by Page 18 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023 NEUTRAL CITATION C/SCA/19109/2005 JUDGMENT DATED: 30/11/2023 undefined the Collector in the RTS proceedings which is not permissible as per the law and therefore, both impugned orders dated 9.4.2001 passed by the Collector, Amreli as well as order dated 8.7.2005 passed by the Joint Secretary, Revenue Department are here by quashed and set aside. The present petition is allowed. Rule made absolute.
(NIRZAR S. DESAI,J) Pallavi Page 19 of 19 Downloaded on : Thu Dec 07 20:31:00 IST 2023