Vanitaben Vijaykumar Savak vs State Of Gujarat
2021 Latest Caselaw 18117 Guj

     C/SCA/15858/2016                                  JUDGMENT DATED: 06/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 15858 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                   VANITABEN VIJAYKUMAR SAVAK & 1 other(s)
                                   Versus
                        STATE OF GUJARAT & 8 other(s)
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Appearance:
.... for the Petitioner(s) No. 1
..... for the Petitioner(s) No. 2
MR SATISH A PANDYA(556) for the Petitioner(s) No. 1,2
  for the Respondent(s) No. 1
MR NIKUNJ KANARA, AGP (1) for the Respondent(s) No. 1
RULE NOT RECD BACK(63) for the Respondent(s) No. 4
RULE SERVED(64) for the Respondent(s) No. 2,3,6,7
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 8,9
UNSERVED EXPIRED (R)(69) for the Respondent(s) No. 5
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                               Date : 06/12/2021
                               ORAL JUDGMENT

1. By filing this petition, the petitioners have challenged order dated 20.6.2016 passed by Secretary, Revenue Department (Appeals), in MVV/JMN/ST/7/2014, whereby order

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dated 27.12.2011 passed by Deputy Collector, Bardoli in Appeal No.21 of 2008 is confirmed. The petitioners have also challenged order dated 18.2.2014 passed in JMN/KLM/7311/Appeal No.9/2012.

2. The brief facts leading to filing of the present petition are that the land of block No.686 of village Anaval, Taluka Mahuva, District Surat (hereinafter referred to as "land in question') was originally belonging to one Rambhai Mitthalbhai Dangar. It appears that the land in question was initially sold vide Agreement to Sell dated 06.07.1979 to the private respondents herein and another person namely Thakor Vallabhbhai Patel who was sold a portion of land. That at the relevant time suo motu action for violation of Section 73(AA) was taken which was subsequently withdrawn vide order dated 13.06.1994 by Deputy Collector himself.

2.1 Thereafter a portion of the land in question was purchased by one Thakor Vallabhbhai Patel vide registered sale deed dated 25.07.1995 for which relevant entry was also mutated in the revenue record. Vide order dated 19.08.1994, said person was declared as owner/occupant of the land in question.

2.2 It is also stated that the present petitioners had executed a registered sale deed with the said person on 07.09.1995. Pursuant to the said registered sale deed entry was mutated on 30.09.1995 which was certified on 13.03.1996. It appears that in the interregnum period, suo moto action for violation of Section 73(AA) was taken by the authorities for which the predecessor from whom the petitioners have purchased the

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land in question had approached this Hon'ble Court by way of filing Special Civil Application No.11748/2012. In the said proceedings order of Secretary (Appeals) dated 21.06.2012 was quashed. This would indicate so far as violation of provisions of Section 73(AA) was concerned, the proceedings before this Hon'ble Court are concluded as suo motu order of the Secretary (Appeals) dated 21.06.2012 was quashed. 2.3 It appears that separate parallel proceedings were also initiated against the predecessor and other persons who had purchased the land in question on the ground that there is violation of Section 73(AA). That the said order was challenged by the present petitioners before the Collector who had also confirmed the impugned order vide its order dated 18.02.2014 passed in proceedings of Appeal No.9/2012. The issue with regard to violation of Section 73(AA) has already been concluded before this Hon'ble Court in the proceedings of Special Civil Application No.11748/2012. That once having quashed the order of issuance of proceedings under Section 73(AA) the parallel proceeding ought not to have been allowed.

3. Heard learned advocate Mr.Satish Pandya for the petitioners and Mr.Nikunj Kanara, learned AGP for the respondent-State at length.

4. Mr.Pandya, learned advocate for the petitioners has submitted that originally the proceedings were initiated in the year 1994 and the same are concluded and it was observed by the Deputy Collector himself that the transactions are before 06.04.1997 and therefore, there is need of initiating the proceedings under the provisions of Section 73(AA) of the Act. In that view of the matter subsequently the said proceedings

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could not have been initiated. That apart the present petitioners are also belonging to Adivasi community and there cannot be any violation of provisions of Section 73(AA) by the present petitioners.

4.1 He has also submitted that the land in question was transferred on 06.07.1979 i.e. before application of Section 73(AA). It is submitted that once the land has been transferred to non-tribal before the application of Section 73 (AA), the same cannot be given a retrospective effect and a subsequent transfer cannot be annulled. He has further submitted that once having found that a transaction was before 1981 and that the predecessor from whom the present petitioners had purchased the land in question was declared as owner / occupier of the land, the Deputy Collector had withdrawn the proceedings which could not have been reopened by the authority after lapse of several years. He has relied upon decision of Hon'ble Apex Court in case of Santosh Kumar Patil vs. Bala Saheb Tukre reported in (2009) 9 SCC 353 as well as decision of Division Bench of this Hon'ble Court in the case of Chandulal Gordhandas Lambodiya and Ors. vs. State of Gujarat reported in 2013 (2) GLR 1788 for the proposition that powers of the authority are to be exercised within reasonable time. It is submitted that in the present case powers are exercised after the third party rights etc. have been created and equities have been changed. Therefore also, the impugned order is bad in law and it is prayed that the same be quashed and set aside. He further submitted that even otherwise the authorities erred in taking any action against the purchaser when the land was already earlier sold before the implementation of Section 73(AA).

C/SCA/15858/2016 JUDGMENT DATED: 06/12/2021

4.2 He has also relied upon the decision of this Court dated 28.11.2013 in Special Civil Application No.11742 of 2012 and allied matters and submitted that present case is squarely covered by the observations made by this Court in aforesaid decision. In view of all these, he has prayed to allow present petition.

5. Mr.Kanara, learned AGP appearing for the respondent- State has submitted that the impugned order passed by the authority below is proper and it does not require any interference. He submitted that present petition is devoid of merits and the same may be dismissed.

6. Considered the submissions advanced by both sides and the material placed on record. As can be seen from the impugned order of SSRD, the land belonged to one Rambhai Vitthalbhai. Thereafter, it was handed over tot he concerned defendant by way of Banakhat dated 27.6.1977. Thereafter, sale transaction was entered into between the parties and earlier notice issued by Deputy Collector was filed. The main grievance of the petitioner is that he is a Tribal and, therefore, during the intervening period, even if any non-tribal has entered into any transaction between the transactions of two tribals, it does not affect the sale transaction entered earlier. The fact remains that present petitioner is a tribal. It also appears that exercise of power by the revenue authority is not within reasonable time. It is also found that the present case is squarely covered by the decision of this Court dated 28.11.2013 in Special Civil Application No.11742 of 2012 and allied matters, wherein it is observed as under:-

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"9. Moreover, the Hon'ble Division Bench of the High Court of Gujarat in a judgment reported in 2013(2) GLR 1788 in the case of Chandulal Gordhandas Ranodriya and ors. v. State of Gujarat & ors. had considered this aspect with reference to the delay in exercise of such powers and the reasonable period. It has been observed,

"It must be fairly said that if the statute does not prescribe time limit for exercise of revisional powers, it does not mean that such powers can be exercised at any point of time even if there is a breach of Section 43 of the Act, which is a provision which relates to a new tenure land, rather it should be exercised within a reasonable period of time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. It is clear from various judgments of the Supreme Court that where a statutory provision for exercise of any suo motu powers of revision does not prescribe any limitation, the powers must be exercised within a reasonable period of time even in the case of transaction which would be termed as void transaction."

10. Therefore, the moot question is what could be considered to be "reasonable time" when the statute does not provide for any time-limit for exercise of such powers. The Division Bench of the High Court in the aforesaid judgment in the case of Chandulal Gordhandas

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Ranodriya (supra) has observed in para 38 referring to an earlier judgment reported in (2003) 4 SCC 488,

"As observed in Veerayee Ammal v. Seeni Ammal, 2002(1) SCC 134, it is "looking at all the circumstances of the case, a "reasonable time"

under ordinary circumstances; as soon as circumstances will permit; so much time as it is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than 'directly; such length of time as may fairly, and properly, and reasonable be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea". Further, it has been observed, "That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer (Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn., 2005)"

7. In view of above facts and having regard to the aforesaid settled position of law, the present petition deserves to be allowed and accordingly it is allowed. The impugned order dated 20.6.2016 passed by Secretary, Revenue Department (Appeals), in MVV/JMN/ST/7/2014, confirming order dated 27.12.2011 passed by Deputy Collector, Bardoli in Appeal No.21 of 2008 as well as order dated 18.2.2014 passed in JMN/ KLM/7311/Appeal No.9/2012 are quashed and set aside. Rule is

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made absolute. No order as to costs. Direct service is permitted.

(DR. A. P. THAKER, J) R.S. MALEK