Lilabhai Kachrabhai Patel vs State Of Gujarat
2021 Latest Caselaw 10657 Guj

C/SCA/22548/2007                             ORDER DATED: 05/08/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 22548 of 2007

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              LILABHAI KACHRABHAI PATEL & 1 others
                             Versus
                   STATE OF GUJARAT & 2 others
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Appearance:
MR BN PATEL(600) for the Petitioner(s) No. 1,2,2.1,2.2
MR MAHESH BHAVSAR(1781) for the Petitioner(s) No. 2.1,2.2
MRS HM BHAVSAR(5340) for the Petitioner(s) No. 2.1,2.2
MS. JIRGA JHAVERI, AGP (1) for the Respondent(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No. 2,3
=============================================

 CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI

                        Date : 05/08/2021

                          ORAL ORDER

1. This petition is preferred under Article 226 of the

Constitution of India by the petitioners, who are the small

agriculturists having the only source of income through

agriculture. The agricultural land admeasuring 6 Acres and

18 Gunthas of Survey no.126 at Satlasna was granted on new

impartible terms to one Shri Dudhabhai Jethabhai Harijan and

mutation entry no.627 dated 5th February, 1965 was entered

in the record. It is avered that the said land was sold to the

forefathers of the petitioners - Kachrabhai Motibhai Patel by

registered Sale Deed dated 28 th June, 1968. Since, then the

forefather of the petitioners continued to possess the land and

after the demise of the Shri Kachrabhai Motibhai Patel, the

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petitioners are in the continuous possession. The said

transaction of sale was without prior permission of the

respondent no.2 - the Collector. After about more than 16

years, the Assistant Collector, Patan issued a notice on 1 st

February, 1984 for taking the necessary actions for violation

of the condition of grant as per the said notice. This notice

was issued to the heirs of Harijan Dudhabhai Jethabhai, whose

names were entered in the revenue records by mutation entry

no.663 in the year 1968 and who had sold the land to the

forefather of the petitioners.

2. The Deputy Collector vide its order dated 7 th May, 1984

in Sharat Bhang Case no.17 of 1984 forfeited the land for the

violation of condition of selling the land without prior

permission to the forefather of the petitioners. The said order

then resulted into the Mamlatdar, Kheralu initiating the

actions for encroachment by Case no.5/92 and passed an

order on 26th March, 1993 directing the petitioners to clear

the encroachment and vacate the land.

The petitioners being aggrieved, challenged the said

order before the Deputy Collector, Patan, who in Revenue

Appeal no.21 of 1993 partly allowed the same and remanded

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the matter back to the Mamlatdar - Kheralu.

3. The petitioner no.1 and the deceased petitioner no.2 on

15th June, 1989 made an application for regularization of the

alleged encroachment of the land. The Mamlatdar, Kheralu

after taking into consideration the facts in entirety made

recommendation of regularization of land of Survey no.126 by

report dated 29th September, 1997. However, the respondent

no.2 - the Collector by its order dated 16 th January, 2000

rejected the application of the petitioners on the ground that

this was meant for reservation for public interest.

4. Aggrieved petitioners preferred the Revision Application

before the respondent no.1, who also rejected the revision

application on 27th February, 2007 and confirmed the order of

the Collector by its cryptic order which according to the

petitioner is contrary to law. It is the grievance on the part of

the petitioners that they are not the encroachers, but after 16

years of the same and in continuous possession of the land,

the petitioners have been labelled as encroachers. In this

regard the material which has been placed before the

authorities by an arbitrary action, it has chosen to dismiss the

plaint, hence the present petition with following prayers.

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(a) To declare and hold that the action of canceling original grant by order dated 7-5-1984 as per Annexure-D for sale made in 1968 by Registered Sale-Deed is absolutely without jurisdiction, illegal, and null and void and to quash and set aside the said order as such. AND IN THE ALTERNATIVE;

(b) To quash and set aside the order 27-2-2007 made by the Joint Secretary, (Appeal) of the respondent no.1 as per Annexure-I and also the order dated 16-1-2000 made by the respondent no.2-Collector as per Annexure - H which is confirmed by aforesaid order of the respondent no.1, as unjust, illegal and null and void. AND

(c) to direct the respondents their servants and agents to grant the agricultural land of Survey no.126 of Satlasna on appropriate terms and conditions to the petitioners forthwith;

(d) to restrain the respondents their servants and agents from evicting the petitioners from the land of Survey no.126 of Satlasna and from disturbing the possession and cultivation of the petitioners in the said land during the pendency of admission, hearing and final disposal of this petition;

(e) to grant cost of this petition and also to grant any other or further relief in favour of the petitioners which may be deemed just, and proper in the case;

5. This Court on 12th October, 2007 while issuing the rule,

restrained the authority from taking any coercive steps to

dispossess the petitioners from the land and the petitioners

are also been directed to maintain status-quo qua the land.

This interim relief has continued till date.

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6. The Court has heard extensively Mr. Mahesh Bhavsar,

learned advocate for the petitioners and Ms. Jirga Jhaveri,

learned AGP for the respondent - State.

7. According to Mr. Bhavsar, learned advocate for the

petitioners, there is a registered Sale Deed on 28 th June, 1968

in favour of the ancestors of the petitioners for a sum of

Rs.4,000/-. After the sad demise of Shri Dudhabhai Jethabhai,

widow and sons of Shri Dudhabhai Jethabhai have sold the

land in question to the ancestors of the petitioners. Show

cause notice according to him was issued on 1 st February,

1984 by the Deputy Collector for the first time noticing the

breach of the term on which the land was granted as the same

was a new tenure impartible land and eventually, according to

the order of forfeiture of 7th May, 1984 was passed. He has

urged that from 1971 to 1973 to 1974 as per the village form

no.7 and 12, the land was reflected in the name of Patel

Kacharabhai Motibhai the ancestors of the petitioners and

therefore, the Punjabhai Kacharabhai, Lilabhai Kachrabhai

are shown to be in possession. He has harped upon a huge

delay of 16 years in questioning the title of the petitioners, the

authorities since have not moved within a reasonable time, he

has urged that the interference is desirable. He further has

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urged that the request on his part for regularization of the

conversion of the new tenure land into old tenure land also

could have been granted. He has heavily relied on the

decision of the Apex Court rendered in case of Raghavnathan

(1969) 2 SCC page-187. Other decisions he relied on are

2015(3) SCC 695, 2009 (9) SCC 352 and the order of this

Court in Special Civil Application no.4332 of 2000.

8. Per contra, Ms. Jirga Jhaveri, learned AGP has

strenuously urged that the land in question is a new tenure

impartible land and without the permission of the concerned

authority, it could not have been transferred. Therefore, the

Revenue Authorities have acted within their jurisdiction and

have rightly initiated the actions. It was a restricted tenure

land where the permission of the Collector was a must. The

breach since was apparent, the authorities have chosen to

direct the forfeiture, she urged that no interference is

necessary.

9. Having taken into consideration the pleadings, the order

impugned and also the detailed submissions made by both the

sides, the undisputed facts which have emerged in this case

are needed to be taken into account.

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10. Harijan Dudhabhai Jethabhai had been granted a new

tenure impartible land admeasuring 6 Acres 18 Gunthas of

Survey no.126 of Satlasna village. Mutation entry no.627 also

reflects the date i.e. 5th February, 1965 when the said entry

was mutated. Harijan Dudhabhai Jethabhai had sold it to

Kachrabhai Motibhai Patel by way of registered Sale Deed on

28th June, 1968. Kachrabhai Motibhai Patel is the forefather

of the present petitioners and on demise of Kachrabhai

Motibhai Patel, the petitioners continued to be in possession

of the said land and also had cultivated it himself.

11. The undisputed fact is that the transaction of sale from

the Dudhabhai Jethabhai to Kachrabhai Motibhai Patel was

without any permission of the respondent no.2 - the Collector.

This being a new tenure land, the same could not have been

transferred without the permission of the Collector and thus,

the sale effected was contrary to the condition of the grant. It

is also a matter of record that the transaction was by way of a

registered Sale Deed on 28 th June, 1968. However, for

violation of the condition of the grant, first time the Asst.

Collector, Patan issued notice on 1 st February, 1984 and that

was issued to the heirs of Harijan Dudhabhai Jethabhai, whose

names continued after the demise of Shri Dudhabhai

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Jethabhai by virtue of mutation entry no.663 in the year 1968.

It appears that the initial mutation entry no.627, which was

effected on 5th February, 1965 then was changed in 1968

whereby the mutation entry no.663 reflects the names of the

heirs of Shri Dudhabhai Jethabhai on 13 th August, 1968, which

is subsequent to the registered Sale Deed executed in the

name of Kachrabhai Motibhai Patel, the forefather of the

present petitioners. For breach of condition of the grant, the

Deputy Collector had initiated the actions vide Sharat Bhang

Case no.17 of 1984 on 7th May, 1984 and forfeited the land

with the Government for not having obtained the prior

permission of the Collector.

12. Heavy reliance is placed on the decision of (1969) 2 SCC

187 in case of State Of Gujarat vs. Patel Raghav Natha & Ors.

The respondent there, was an occupant of agricultural land

who applied to the Collector under Section 65 of the Bombay

Land Revenue Code, 1965 for permission to convert the land

into non-agriculture use. This permission was given in July,

1960 on a condition that the land shall be used exclusively for

constructing the residential houses. The Municipal

Committee objected to the grant of the permission before the

Collector, moved the Commissioner for exercising these

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powers under Section 211 of the Code. The Commissioner

concluded that the land did not belong to the respondent and

set aside the Collector's order without giving any reasons.

12.1 The Commissioner's order was quashed by the

High Court on the ground that the Commissioner had no

authority to pass the order under Section 211 of the Code.

12.2 When the matter was taken-up before the Apex

Court, it held that the Commissioner's order was rightly

quashed under Section 65 of the Code. If the Collector does

not inform the applicant of his decision on the application

within the period of three months, the permission applied for

shall be deemed to have been granted. Though no such

period is prescribed by Section 211 of the Code, by reading

two sections together, the Apex Court held that the

Commissioner also must exercise its revisional powers within

a reasonable time of the Collector's order. What is reasonable

would depend upon the facts of the case. The Court also said

that in the case before it, the permission since was for

building purpose, the Commissioner should have exercised

the powers within a few months after the Collector's order

since after the grant of the permission, the occupant would

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like to spend money on building operations within a few

months.

The order of the Commissioner in the matter before the

Apex Court was passed more than a year after the Collector's

order, therefore, it was set aside also on the ground that the

order was without any reasons and the third reason was the

Commissioner had gone into the title when there was a matter

of title however, the Court held that if there is a serious

dispute regarding the title, authority should refer the parties

to the competent Court to decide the same.

13. There is yet another decision, which has been heavily

relied upon reported in (2009) 9 SCC 352 in the case of

Santoshkumar Shivgonda Patil & Vs. Balasaheb Tukaram

Shevale & Ors. The question that arose for consideration of

the Apex Court by special leave was whether the power of

revision in Section 257 of Maharashtra Land Revenue Code,

1966 would be exercised at any time, though no time has been

fixed to exercise such powers. The forefather of the

respondent before the Apex Court, who was the predecessor

in title and until his death in the year 1990, he did not

challenged the Tehslidar's order dated March, 30 th 1976 in

any proceedings he passed an order whereby 3/4 th of the

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portion of the land earlier in occupation of Tukaram was

granted in favour of the appellant on the basis of his

occupation as cultivator - and only 1/4 th have remained in

favour of Tukaram. It is only after the death of Tukaram that

his legal heirs made an application before the Sub-Divisional

office seeking revision of the order passed in the month of

March, 1976 that revisional powers were invoked under

Section 257 of the Maharashtra Land Revenue Code and the

Revision Application was allowed setting aside the order of

March, 30, 1976. Upset by the same, the appellant

challenged the same before the Addl. Collector, who agreed

with the view of the Sub-Divisional Officer and rejected the

appeal. It was carried through the Commissioner without any

success and therefore, writ petition came to be filed before

the High Court at Judicature Bombay and the learned Single

Judge has dismissed the revision. The Letters Patent Appeal

also was rejected.

13.1 In this backdrop, the Apex Court held that the

provisions 257 does not have any time limit fixed for exercise

of the power of revision at the end of revisional authority

therefore, the question would arise as to whether it should be

exercised at any time as per sweet will of the litigant.

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13.2 Relying on the decision of State Of Gujarat vs.

Patel Raghav Natha (supra) with reference to Section 65 and

211 of the Bombay Land Revenue Code, the Court held that

the Commissioner must exercise its revisional powers within a

few months of the order of the Collector. While referring to

the decision rendered in case of Raghav Natha (Supra) under

Section 84C of the Bombay Tenancy and Agriculture Lands

Act, 1976, where the Court held that ordinarily where no time

limit is prescribed under the statute, the same should be

exercised within a reasonable time. Various authorities also

have been relied upon to hold that it is trite that if no period

of limitation has been prescribed; statutory authorities must

exercise its jurisdiction within a reasonable period. However,

reasonable period would depend upon the nature of the

statute, rights and liabilities thereunder and other elements.

The Court also said that the revisional jurisdiction in its

opinion should ordinarily be exercised within a period of three

years having regard to the purport in terms of the act before

it. In any event, the same should not exceed beyond the

period of five years. The reasonable period must be found-out

from the statutory scheme and the maximum period of

limitation provided as held in the Punjab General Sales Tax

Act, was considered as five years in case of State of Punjab vs.

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Bhatinda District Co-operative Milk Producers' Union

reported in (1997) 6 SCC page 713. Relevant paragraphs of

the said judgment are as under:

13. Indisputably, books of accounts and other relevant documents were taken into consideration by the assessing authority while passing the order of assessment.

14. Sub-section (1) of Section 11 provided for a three years limitation. We may notice that the said period of limitation was introduced by reason of Punjab Act No.12 of 1998 and prior thereto a period of five years was prescribed therefor. Sub-section (3) of Section 11 also provides for a three years limitation. Sub-section (6) of Section 11which is the residuary provision provides for five years limitation.

15. Sub-section (1) of Section 11 empowers the Commissioner to extend the period of three years for passing the order of assessment wherefor reasons are required to be recorded in writing subject, however, to the maximum period of five years. Ordinarily, therefore, a period of three years has been prescribed for completion of the assessment in terms of the provisions of the Act. We may also notice that in cases where an assessment order is to be reviewed, the same should be done within a period of one year.

16. A bare reading of Section 21 of the Act would reveal that although no period of limitation has been prescribed therefor, the same would not mean that the suo moto power can be exercised at any time.

13. In case of Joint Collector Ranga Reddy District & Anr.,

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Vs. D. Narsing Rao & Others, the Apex Court (2015) 3 SCC

695 was considering the issue of exercise of suo motu

revisional powers after long lapse of time, the names of

predecessor in title of the respondents were found in the

record in the year 1954-55 and the purchase of the said land

by the respondents was under the registered sale deed and

that fact was not in dispute. They have been paying the land

revenue continuously since the year 1954 and because of that

the claim was of the substantial right on account of

continuous possession and enjoyment of the property had

accrued in favour of the respondents. In this background,

when there was an exercise of suo motu revisional powers

after long lapse, it was urged that the same was arbitrary.

There was a bonafide dispute of title and that remedy could

only lie with the suit before the Civil Court. The Apex Court

referred to the decision of Patil Raghav Natha and other

decisions, the Court held that in absence of any necessary and

sufficient particulars pleaded as regards fraud, the suo motu

power could be exercised within reasonable time from the

date of discovery of such fraud. The Court also has concluded

that the name of the predecessor in entitle of the respondents

were already referred to in the record of rights. The

registered sale deeds also were not disputed and they

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continued to pay the land revenue continuously since the year

1954. The notice came to be issued under Section 166B of the

Andhra Pradesh - Telangana Land Revenue Act for the

examination of entry in the year 1953-54 by fixing the date of

inquiry as 5th February, 2005. Therefore, the Court said that

suo motu power could not have been exercised after the

period of 50 years. In para-16 of the said judgment reads as

under :-

"16. No time-limit is prescribed in the above section for the exercise of suo motu power but the question is as to whether the suo motu power could be exercised after a period of 50 years. The Government as early as in the year 1991 passed an order reserving 477 acres of land in Survey Nos.36 and 37 of Gopanpally Village for house sites to the government employees. In other words, the Government had every occasion to verify the revenue entries pertaining to the said lands while passing the Government Order dated 24-9-1991 but no exception was taken to the entries found.

Further the respondents herein filed Writ Petition no.21719 of 1997 challenging the Government Order dated 24-9-1991 and even at that point of time no action was initiated pertaining to the entries in the said survey numbers. Thereafter, the purchasers of land from respondents 1 and 2 herein filed a civil suit in OS No.12 of 2001 on the file of the Additional District Judge, Ranga Reddy District praying for a declaration that they were lawful owners and possessors of certain plots of land in Survey no.36, and after contest, the suit was decreed and said decree is allowed to become final. By the impugned notice dated 31-12-2004 the suo motu revision power under Section 166-B referred to above is sought to be exercised after five decades and if it is allowed to do so it would

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lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties."

Thus, suo motu revision undertaken after long lapse of

time even in absence of period of limitation was held to be

arbitrary and opposed to the concept of rule of law. This

Court in Special Civil Application no.4332 of 2000 had an

occasion to consider the variation, which has been decided as

under :-

"5. Having thus heard the learned counsel for the parties and having perused documents on record, I am of the opinion that Special Secretary committed an error in passing the impugned order. This is so because of the following reasons:

(i) Firstly the auction sale had taken place in March, 1976. For nearly 20 years the revenue authorities found no defect in such auction. It was for the first time that the Collector in the entry proceedings tried to examine the legality of the auction itself. Since such approach of the Collector was apparently impermissible, the Special Secretary rightly quashed Collector's order deleting the revenue entry in favour of the petitioner with respect to such land. This was done in the year 1996. Three more years passed before the Special Secretary took further action, by issuing a notice proposing to take the order of the Mamlatdar selling the land through auction in suo motu revision. Such order ultimately came to be passed in the year 2000. Thus, more than 24 years after the land was sold to the petitioner through public auction, validity of such action came to be examined by the Special Secretary. Such action was initiated more than three years after he himself had, after fullfledged hearing, quashed the order of the Collector, disturbing the revenue entry made in favour of the petitioner on the basis of such auction sale. The entire action was thus, grossly belated. It is true that previously the transactions which could be categorized as ab initio void, judicial trend permitted considerable latitude to the Government machinery to rectify such mistakes. However, the later trend suggests major shift and even such ab initio void

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and nonest orders are required to be set aside through proper procedure within reasonable time. It is of course true that what would be reasonable time when the statute does not provide for any fixed period of limitation, is invariably a question of fact to be judged on the basis of material on record and relevant facts and circumstances.

(ii) In case of Valjibhai Jagjivanbhai Vs. State of Gujarat reported in 2005 (3) GLR 1852 the Division Bench of this Court, after referring to large number of decisions of this Court as well as the Apex Court in context of the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act,1947 held and observed as under:

"17.1. The aforesaid discussion shows that there is sufficient scope for the revenue authorities of the State to know about illegal transaction which can be termed void under section 9 (1) of the Act, inspite of that, if such void transaction is allowed to exist for years together, it is difficult to hold that the competent authority, even then would be within its bounds to initiate proceedings to declare such transaction void and annul it. It is also difficult to envisage that when two routes are available for reaching the ultimate destination under section 9(2) and (3) of the Act, on the route prescribed under section 35, the authority named therein will not be permitted to travel and the shutters will be drawn at the point where reasonableness ends. Whereas the other route i.e. under section 9 of the Act will remain open for all time to come. To lay down proposition of law, in relation to section 9 of the Act, that the Collector can exercise power thereunder even after inordinate delay, irrespective of the fact that there is scope for him to know about illegality committed cannot only be dangerous because it can give ample opportunity to some crafty seller to exploit the situation to his advantage, as we will presently discuss, but it can also be against the principle that one cannot sleep over his right for unreasonable period. It has to be pursued vigilantly.

18. It may also be kept in view that even after exercise of power under section 9 sub-section (3) the Collector will not be able to pass any other order except restoring the possession of the land back to the original

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owner. In the case of Govindsingh v/s. G Subbarao [supra] the Division Bench of this Court has taken the following view :

"The power given to the Collector to summarily evict a person when it is found that by reason of the transfer being void, he is unauthorisedly in occupation or wrongfully in possession of the land and to restore possession of the land to the original owner is obviously conferred upon the Collector to secure enforcement of the salutary and beneficent provisions of the Act. The Collector cannot, in the absence of specific provision to that effect, retain possession as against the owner of the land."

In such circumstances, one can easily visualize the situation wherein some unscrupulous seller with his eyes open, enters into transaction of sale of a fragment and ultimately completes that transaction and puts bonafide purchaser in possession of the land and after inordinate delay when he realises that the prices of the land have gone up considerably, he may just whisper into the ears of the Collector regarding illegal transaction as it has happened in the present case, and the Collector having found the transaction to be such, would only penalize the owner by imposing nominal fine. However, he will at the same time almost ruin the bonafide purchaser by taking back his possession of the land and restoring it to the seller. This can be dangerous and it is difficult to reconcile to such situation. Such situation does not appeal to the common-sense and legislature also would not have intended to encourage such dishonesty. On this aspect our Court has taken very strict view."

(iii) Such decision was followed by a later Division Bench in case of Rameshbhai Ambalal Shah Vs. State of Gujarat reported in 2011 (3) G.L.H. 98 wherein in the context of Section 63 breach and the power of the Mamlatdar under Section 84-C of the Act it was held that:

"16. In the case of Santoshkumar Shivgonda Patil V/s. Balasaheb Tukaram Shevale reported in 2009(9) SCC 352, the Supreme Court in paras 13,14,15 and 16 held as under:-

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"13. A close look at the aforesaid provision would show that there is no time limit fixed for exercise of power of revision by the revisional authority. The question is, could it be exercised at any time. While dealing with the question like the present one, a 3-Judge Bench of this Court in the case of State of Gujarat v. Patil Raghav Natha1, with reference to Sections 65 and 211 of Bombay Land Revenue Act, 1879, held thus :

"11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.

12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961 i.e more than a year after the order and it seems to us that this order was passed too late."

14. While dealing with the suo-motu revisional power under Section 84-C of the Bombay Tenency and Agricultural Lands Act, 1976, this Court in Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim [1997(6) SCC 71] held that generally where

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no time-limit is prescribed for exercise of power under statute, it should be exercised within a reasonable time. This is what this Court said:

"Section 84-C of the Act does not prescribe any time for initiation of the proceeding. But in view of the settled position by several judgments of this Court that wherever a power is vested in a statutory authority without prescribing any time- limit, such power should be exercised within a reasonable time. In the present case the transfer took place as early as in the year 1972 and suo motu enquiry was started by the Mamlatdar in September 1973. If sale deeds are declared to be invalid the appellant is likely to suffer irreparable injury, because he has made investments after the aforesaid purchase. In this connection, on behalf of the appellant reliance was placed on a judgment of Justice S.B. Majmudar (as he then was in the High Court of Gujarat) in State of Gujarat v. Jethmal Bhagwandas Shah (Spe.WA No. 2770 of 1979) disposed of on 1-3- 1990, where in connection with Section 84-C itself it was said that the power under the aforesaid section should be exercised within a reasonable time. This Court in connection with other statutory provisions, in the case of State of Gujarat v. Patil Raghav Natha (1969) 2 SCC 187) and in the case of Ram Chand v. Union of India (1994) 1 SCC 44) has impressed that where no time limit is prescribed for exercise of a power under a statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time. We are satisfied that in the facts and circumstances of the present case, the suo motu power under Section 84-C of the Act was not exercised by the Mamlatdar within a reasonable time."

15. Recently, in the case of State of Punjab and Others v. Bhatinda District Cooperative Milk Producers Union Ltd.[JT 2007 (12) SC 314: 2007(11) SCC 363] while dealing with the power of revision under Section 21 of the Punjab General Sales Tax Act, 1948, it has been held:

"17. A bare reading of Section 21 of the Act would reveal that although no period of limitation has been prescribed therefore, the same would not mean that the suo motu power can be exercised at any time.

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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 sub-section (6) of Section 11 of the Act is five years."

16. It seems to be fairly settled that if a statue does not prescribe the time limit for exercise of 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. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein. Ordinarily, the reasonable period within which power of revision may be exercised would be three years under Section 257 of the Maharashtra Land Revenue Code subject, of course, to the exceptional circumstances in a given case, but surely exercise of revisional power after a lapse of 17 years is nota reasonable time. Invocation of revisional power by the Sub- Divisional Officer under Section 257 of the Maharashtra Land Revenue Code is plainly an abuse of process in the facts and circumstances of the case assuming that the order of Tehsildar passed on March 30, 1976 is flawed and legally not correct. Pertinently, Tukaram Sakharam Shevale, during his lifetime never challenged the legality and correctness of the order of Tehsildar, Shirol although it was passed on March 30, 1976 and he was alive upto 1990. It is not even in the case of Respondent Nos.1 to 5 that Tukaram was not aware of the order dated March 30, 1976. There is no finding by the Sub- Divisional Officer either that order dated March 30, 1976 was

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obtained fraudulently."

(iv) In yet another recent decision in case of Shambhu Videshiram Morya Vs. State of Gujarat Through Secretary (Appeals) & Ors. reported in 2012 (1) GLR page 665 relying on the decision of this Court in case of Valjibhai Jagjivanbhai Vs. State of Gujarat (supra) action in context of the breach of Section 63 of the Act and powers of the Mamlatdar under Section 84-C thereof, the Division Bench held that such exercise of powers after fifteen years suffered from delay and the action was quashed.

(v) In case of Bhanji Devshibhai Luhar Vs. State of Gujarat and ors. reported in 2011 (2) GLR 1676 the Division Bench in the context of Saurastra Gharkhed, Tenancy, Settlement and Agricultural Lands Ordinance, 1949 which made similar provisions with respect to the cultivation and personal cultivation as in the Bombay Tenancy and Agricultural Lands Act held that the action taken by the authorities to question the transaction of sale of land after 17 years was not permissible. In such judgement, the contention that the transaction was void and therefore, no period of limitation would apply, the Division Bench observed as under:

"22.2 We may also refer to a recent decision in the case between Krishnadevi Malchand Kamathia vs. Bombay Environmental Action Group (2011 {3} SCC 363), the Apex Court, has, with regard to void order, observed in paragraph No.16 that:-

"16. It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In Sate of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil, Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd., M. Meenakshi v. Metadin Agarwal and Sneh Gupta v. Devi Sarup, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.

While referring to the earlier decisions in the case State of Punjab (supra) as well as in the case of Sultan Sadik v. Sanjay Raj Sabba (2004 [2] SCC 377) the Apex

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Court has observed:-

"19. Thus, from the above it emerges that even if the order / notification is void / voidable, the party aggrieved by the same cannot decide that the said order / notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person"

23. Under the circumstances, upon considering the overall facts and circumstances of the present case and in light of the foregoing discussion and having regard to the fact that at the time of transaction the petitioner was agricultural labourer and he purchased the land for agriculture use and since then he has maintained the status of the land and continues to put the land to agricultural use, the decision to compulsorily evict the petitioner after lapse of 17 years (by now almost 30 years) deserves to be set aside."

(vi) I am not unmindful of the decision of Division Bench dated 02.02.2000 passed in Letters Patent Appeal No. 2155 of 2007 in case of Abdulbhai Daoodbhai Muman Vs. Dy. Collector and anr., wherein the Division Bench had, on facts, distinguished the case of Valjibhai Jagjivanbhai Vs. State of Gujarat (supra). There being material factual differences, the decision in case of Abdulbhai Daoodbhai Muman Vs. Dy. Collector and anr. cannot be stated to have laid down any proposition of law contrary to the case of Valjibhai Jagjivanbhai Vs. State of Gujarat (supra).

(vii) In the present case, delay of more than 20 years in initiating the proceedings to examine validity of the Mamlatdar's auction proceedings by no stretch of imagination can be stated to be within reasonable time. There is absolutely no explanation why such action was not initiated earlier, why the authority was prevented from entering into the action of the Mamlatdar. More importantly, the Special Secretary was well aware of the entire issue when any revision petition filed by the present petitioner challenging

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the order of the Collector in context of the revenue entries he had full view of the necessary facts. For three years thereafter no action was taken."

14. In the instant case, as could be noticed, by a registered

sale deed, the land had been sold to the ancestors of the

petitioners in the year 1968 for a sum of Rs.4,000/-. The

Assistant Collector, Patan had recorded in the order that for

the year 1970-1971 to 1973-1974, the land was in the name of

Patel Kachrabhai Motibhai - in the year 1974-75 the heirs of

Motibhai Kachrabhai viz. Punjabhai Kachrabhai and Dilabhai

Kachrabhai were shown to be in possession of the land right

upto 1983-84.

15. The show cause notice for the first time had been issued

by the Deputy Collector in the year 1984. Noticing the breach

of the terms of the grant, as the land was a new tenure

impartible land, notice has been issued to the original grant

on 1st February, 1984 and on 7th May, 1984, the land had been

forfeited. It is not in dispute that the entry has already been

effected as mentioned in the village form no.7 and 12 from the

year 1970-71 onwards. The change of the name had been

clear, the authority however, acted after 16 years of the

registered sale deed and 14 years after the name had been

mutated in the revenue record. Even if it was desirous of

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exercising the suo motu powers it could not have done it after

such a long time or it could have also given an opportunity to

the petitioner to make the payment for conversion of the new

tenure land to the old tenure land.

16. Mr. Bhavsar, learned advocate has fairly submitted

before this Court that the petitioner is ready to make the

payment for the amount payable for the conversion as it is not

in dispute that there has been a breach of the grant, which

had been effected in favour of the Dudhabhai Jethabhai. This

discussion also finds place in the order of the Deputy

Collector, who had proposed this in the year 1997.

17. Ms. Jhaveri, learned APP relied upon the decision

rendered in 2019 JX (Guj) 1262 in case of Nanabhai

Sendhabhai Vaghari (Deceased) Vs. District Collector and has

urged that for working-out those details, let this matter be

remanded back to the Collector, Mehsana, who had rejected

earlier application to regularize the possession of the

applicants referring the same to be an unauthorised

encroachment. As this Court had restrained the authority

from taking any coercive steps, the petitioners have continued

the peaceful enjoyment of this property and it is also not in

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dispute that the same is cultivated by the petitioners. The

orders canceling original grant dated 7 th May, 1984 by virtue

of order dated 16th January, 2000 of Collector and the order of

the Joint Secretary dated 27th February, 2007 denying prayers

thereafter deserve to be quashed and set aside. It is also

needed to be made a mention that at the relevant time, since

Kheralu - Ambaji Highway was under construction, this parcel

of land is contemplated to be needed for the public purpose.

This land is situated at about 1.5 kms. away from the said

highway.

18. So far, as no notice has been received by the petitioners

or the heirs of Dhudhabhai Jethabhai for regularization of the

land in that view of the matter, while quashing both the

orders, of Collector dated 16 th January, 2000 and the order of

the Joint Secretary dated 27th February, 2007, the same is

remanded back for the Collector to consider the request of

regularization of the land in accordance with law. Direct

service is permitted.

(SONIA GOKANI, J.) AMAR RATHOD...