Gujarat High Court
Manekben D/O Ramabhai Dhanji Bhai vs State Of Gujarat on 17 February, 2021
Bench: Ashutosh J. Shastri
C/SCA/10501/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10501 of 2006
With
R/SPECIAL CIVIL APPLICATION NO. 10502 of 2006
With
R/SPECIAL CIVIL APPLICATION NO. 10503 of 2006
With
R/SPECIAL CIVIL APPLICATION NO. 10504 of 2006
With
R/SPECIAL CIVIL APPLICATION NO. 10505 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
===============================================================
MANEKBEN D/O RAMABHAI DHANJI BHAI & 4 other(s)
Versus
STATE OF GUJARAT & 8 other(s)
===============================================================
Appearance:
MR DHRUVIN P BHUPTANI(8295) for the Petitioner(s) No. 1
MS SHRUTI PATHAK, AGP IN SCA NOS. 10501 OF 2006, 10502 OF 2006
AND 10503 OF 2006 AND MS VRUNDA SHAH, AGP IN SCA NOS. 10504
OF 2006 AND 10505 OF 2006 for the Respondent(s) No. 1,2
RULE SERVED BY DS(65) for the Respondent(s) No. 3,4,5,6,7,8,9
===============================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 17/02/2021
COMMON ORAL JUDGMENT
The present group of petitions is arising out of the order
passed by the respondent authority and in substance, since the grievance
C/SCA/10501/2006 JUDGMENT
raised by the petitioners is common and the facts are almost similar,
learned advocates appearing for the respective parties have requested
the Court to dispose of the petitions by common judgment. As a result of
this, Special Civil Application No. 10501 of 2006 is treated as a lead
matter and the facts are taken therefrom.
2. The case of the petitioner of the main petition is that the
original land owner Ramanbhai Dhanjibhai executed a powerof
attorney in 1983 in favour of one Dudhiben Ramabhai who was stated to
be his second wife and on the basis of the said powerofattorney,
mutation entry was also effected in the revenue record as entry No.
3579. Based upon the said powerofattorney, Dudhiben executed sale
transaction with respect to the land in question in favour of one
Dahyabhai Nanabhai Patel and his family by way of execution of
registered sale transaction dated 07.12.1989 and this registered sale
transaction was also got mutated in the revenue record and mutation
entry No. 3700, according to the petitioner, came to be certified. It is the
case of the petitioner that after almost more than 19 years, respondent
No.4 Kunvarben, daughter of first wife Premiben of deceased Rama
Dhanji has initiated the proceedings for challenging mutation entry No.
3579 and surprisingly, according to the petitioner, the Deputy Collector
vide order dated 17.12.2003 after examining was pleased to reject the
request of respondent No.4. Being aggrieved by the same, respondent
No.4 filed an application before the Collector - respondent No.3 herein.
According to the petitioner, the order came to be passed on 02.11.2004
by respondent No.3, whereby the mutation entry No.3579 as well as
entry No. 3700 came to be cancelled though there was no challenge to
the later entry, as a result of which, being aggrieved by the same, the
petitioner approached the learned Secretary (Appeals), Revenue
Department - respondent No.2 by way of preferring revision application
under Rule 108(6)(A) of Bombay Land Revenue Rules. Respondent No.2
was pleased to reject the revision application vide order dated
C/SCA/10501/2006 JUDGMENT
23.03.2006 which order is made subject matter of present petition under
Articles 226 and 227 of the Constitution of India.
2.1 The other sets of the petitions being Special Civil
Application No. 10502 of 2006 to Special Civil Application Nos. 10505 of
2006, are one page petitions which were permitted to be filed since the
issue arising is almost similar. It appears from the record that these
petitions have been clubbed together initially while entertaining and a
common order came to be passed after hearing all the parties to the
proceedings on 21.06.2006. Since the said order is relevant, the Court
would like to reproduce the same hereunder :
"1. Upon hearing Mr. Abichandani, learned
Counsel for the petitioner, Mr. Joshi, learned Counsel
appearing for respondent No.5 and Mr. Mengdey,
learned AGP for the State Authority, it prima facie
appears that the District Collector as well as the State
Government, both, have committed error in cancelling
the entry Nos.3579 and 3700. I would have recorded the
reasons for granting interim order, however, Mr. Joshi,
learned Counsel appearing for Respondent No.5
submitted that any observations which may be made by
this Court might prejudice the rights of the parties in the
proceedings of Special Civil Suit No.215 of 2006, which
is preferred by his client, respondent No.5 and, therefore,
in view of the aforesaid prayer, I find it proper not to
record the reasons further. Suffice it to say that the entry
made in the year 1983 as well as the entry based on the
registered sale deed deserve to be continued with the
clarification that the same would be subject to the
outcome of the proceedings of Special Civil Suit No.215
of 2006.
2. Hence, Rule. Mr. Joshi, learned Counsel for
Respondent No.5 and Mr. Mengdey, learned AGP for the
State Authority waive service of notice of Rule. By
interim order, the operation and implementation of the
orders of the District Collector as well as the State
Government are stayed with the directions that the entry
C/SCA/10501/2006 JUDGMENT
No.3579 dated 15.6.1983 and entry No.3700 dated
21.1.1983 shall continue in the revenue record with the
clarification that the same shall be subject to the
outcome of the proceedings of Special Civil Suit No.215
of 2006 pending in the Court of Civil Judge (S.D.),
Surat. The earlier interim order shall stand modified
accordingly."
2.2 It appears from the record that in between during the
passage of time, learned advocate Mr. Premal Joshi who was then
appearing for respondent No.5 requested the Court for deletion of his
appearance with a further request to issue fresh notice, but then it has
been clarified in the said order dated 30.03.2009 that it is the duty of
respondent No.5 to make an alternate arrangement to represent her case
since the rule was issued long back on 21.06.2006 and note came to be
disposed of. It further appears that thereafter, no grievance appears to
have been raised with regard to the said order dated 30.03.2009 by any
of the contesting respondents and as such, upon request of learned
advocate, matter is taken up for hearing.
3. Heard learned senior advocate Mr. H. M. Parikh assisted by
learned advocate Mr. Dhruvin Bhuptani for the petitioners and learned
Assistant Government Pleader Ms. Shruti Pathak and learned Assistant
Government Pleader Ms. Vrunda Shah for the respondent authorities.
4. Learned senior advocate Mr. H. M. Parikh assisted by
learned advocate Mr. Dhruvin Bhuptani for the petitioners has
vehemently contended that it is a settled position of law that the revenue
discretion be exercised within a reasonable period and here is a case in
which the powerofattorney was executed in 1983, pursuant to which, a
registered sale transaction came to be executed on 07.12.1989 and
further, the entry which was also certified regarding powerofattorney is
entry No. 3579 which was posted in the revenue record years back and
after almost more than 19 years, respondent No.4 who happened to be
C/SCA/10501/2006 JUDGMENT
daughter of first wife Premiben of deceased Rama Dhanji initiated the
proceedings to challenge entry No. 3579 which was not entertained by
the Deputy Collector vide order dated 17.12.2003. Learned senior
advocate has then contended that in addition thereto, even respondent
No.3 passed the impugned order on 02.11.2004 cancelling two entries i.
e. entry No. 3579 and entry No. 3700, in which, according to learned
senior advocate, later entry was not the subject matter of challenge, but
still however, by overstepping jurisdiction, respondent No.3 has passed
an order which is challenged by the petitioner before the Revisional
Authority, but unfortunately, without application of mind in a
mechanical exercise of jurisdiction, the revision application came to be
rejected. So, according to learned senior advocate, two issues have
arisen in the present proceedings, firstly the powers are exercised after a
long period of 19 years and secondly, the entry which was made
pursuant to registered sale transaction though not under challenge was
tried to be cancelled by the authority and therefore, a clear error of
jurisdiction is committed by the respondent authority. As a result of this,
according to learned senior advocate, both the orders impugned in these
petitions deserve to be quashed and set aside.
4.1 To substantiate his submissions, learned senior advocate
Mr. Parikh has relied upon the decision delivered by this Court in case of
State of Gujarat Vs. Patel Raghav Natha and ors. reported in AIR
1969 SC 1297, which is consistently followed by series of decisions as
well as the decision in case of Telengana Housing Board vs.
Azamunnisa Begum (died) through legal representatives and others
reported in (2018) 7 SCC 346 and contended that only on this solitary
ground, the petitions deserve to be allowed by setting aside the
impugned orders. Learned senior advocate has further submitted that it
is absolutely clear in order dated 21.06.2006 that the entry in question is
not prejudicing any right or contention of the parties to the proceedings
C/SCA/10501/2006 JUDGMENT
which are in the form of Special Civil Suit No. 215 of 2006 and under
the instructions, learned senior advocate has submitted that the entry in
question is always subject to decision which may be taken in the
aforesaid suit proceedings and therefore, in the terms of the order dated
21.06.2006, the petitions be disposed of by setting aside the impugned
order and according to him, it is needless to say that the parties are
bound by whatever outcome of Special Civil Suit No. 215 of 2006.
Learned senior advocate has further submitted that since the entry
proceedings are fiscal in nature, the rights are not being determined and
as such, even if respondents in the present proceedings have not
appeared, the petitions are requested to be disposed of as no prejudice is
likely to be caused to them. As such, he has contended that the reasons
which are assigned for exercising jurisdiction are not sustainable in the
eye of law and a request is reiterated to dispose of the petitions by
granting relief as prayed for.
5. As against this, learned Assistant Government Pleader
Ms. Shruti Pathak appearing on behalf of the respondent authorities has
submitted that the jurisdiction which has been exercised by the
Revisional Authority as well as by the Collector is just and proper and on
the contrary, it has specifically been asserted by the authority while
passing the order that the petitioner has not come with clean hands and
on the basis of the conduct of the petitioner, the petitions may not be
entertained. Apart from that, it has further been contended that the
findings which have been arrived at by the Revisional Authority are also
based upon analysis of material on record and therefore, no
extraordinary jurisdiction be exercised in the present proceedings.
Additionally, learned AGP has further contended that since these entries
are not determining the rights of the parties, the writ jurisdiction may
not be exercised when a detailed order is passed by the authority below.
Learned AGP has further contended that here is a case in which learned
C/SCA/10501/2006 JUDGMENT
Revisional Authority has taken a note of situation where while making a
mutation entry in origin entry No. 3579, Section 135D notices have not
been given to the parties and therefore, that was one of the grounds for
which the Revisional Authority has passed an order and as such, in
absence of any illegality in inserting the entry, writ jurisdiction may not
be exercised. Learned AGP has further contended that the civil suit is
pending, so even if the Court is inclined to dispose of the petitions, the
right and title of the petitioners including respondents are always being
governed by the outcome of the civil suit as referred to in order dated
21.06.2006.
6. Having heard learned advocates for the respective parties
and having gone through the material on record, it appears undisputably
that pursuant to powerofattorney, the revenue authority recorded entry
No. 3579 and based upon it, registered sale transaction also came to be
executed on 07.12.1989. Further, it is not in dispute that the said
registered sale transaction has been recorded in the revenue record and
entry has been certified being entry No. 3700. It appears from the record
that respondent No.4 happened to be daughter of first wife of deceased
Rama has made an attempt to challenge the same after almost a period
of 19 years and thereto her mother has never raised any obligation in
past and then, it further appears that though subsequent entry No. 3700
was not subject matter of challenge, the authorities have cancelled the
said entry as well based upon the cancellation of original entry No.
3579. As a result of this, it appears that the authorities have not properly
exercised the discretion. Indisputably, the law on the subject of
exercising revenue jurisdiction within a reasonable time is well settled by
catena of decisions based upon basic judgment in Raghav Natha
(supra). In the case on hand, the challenge to the entries and exercise of
discretion by the respondent authorities is after unexplained
unreasonable period of 19 years. Since this Court is relying upon the
observations made in the aforesaid decision, the Court would like to
C/SCA/10501/2006 JUDGMENT
reproduce the same hereunder:
"11. The question arises whether the
Commissioner can revise an order made under s. 65 at
any time. It is true that there is no period of limitation
prescribed under s. 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 s. 65 itself indicates the
length of the reasonable time within which the
Commissioner must act under, s. 21 1. Under s. 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 ss. 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.
13. We are also of the opinion that the order
of the Commis sioner should be quashed on the ground
that he did not give any reasons for his conclusions. We
have already extracted the passage above which shows
that after reciting the various contentions he badly
stated his conclusions without disclosing 344 his
reasons. In a matter of this kind the Commissioner
should indicate his reasons, however, briefly, so that an
aggrieved party may carry the matter further if so
C/SCA/10501/2006 JUDGMENT
advised.
14. We are also of the opinion that the
Commissioner should not have gone into the question of
title. It seems to us that when the title of an occupant is
disputed by any party before the Collector or the
Commissioner and the dispute is serious the appropriate
course for the Collector or the Commissioner would be
to refer the parties to a competent court and not to
decide the question of title himself against the
occupant."
7. It is also informed to this Court that this basic judgment is
reiterated and followed in other cases. In the recent decision delivered
by the Apex Court in Telengana Housing Board (supra), after
considering the law on the subject, the Apex Court has propounded that
the powers are required to be exercised within a reasonable period. The
observations contained in paragraph 59, 60 and 61 of the said decision
are reproduced hereunder :
"59. It is now well settled that where no time
limit is specified, whatever is required to be done should
be within a reasonable period. In Collector v. P.
Mangamma7it was held in paragraphs 5 and 6 as
follows:
"5. A reasonable period would depend
upon the factual circumstances of the case
concerned. There cannot be any empirical
formula to determine that question. The
court/authority considering the question
whether the period is reasonable or not
has to take into account the surrounding
circumstances and relevant factors to
decide that question.
6. In State of Gujarat v. Patel Raghav
Natha8 it was observed that when even no
period of limitation was prescribed, the
power is to be exercised within a
C/SCA/10501/2006 JUDGMENT
reasonable time and the limit of the
reasonable time must be determined by
the facts of the case and the nature of the
order which was sought to be
varied.........". Reasonable, being a relative
term is essentially what is rational
according to the dictates of reason and not
excessive or immoderate on the facts and
circumstances of the particular case."
60. Similarly, in Joint Collector Ranga Reddy
District v. D. Narsing Rao 9 the exercise of revisional
jurisdiction where no timelimit is specified was
considered and it was held in paragraph 31 of the
Report as follows:
"31. To sum up, delayed exercise of
revisional jurisdiction is frowned upon
because if actions or transactions were to
remain forever open to challenge, it will
mean avoidable and endless uncertainty in
human affairs, which is not the policy of
law. Because, even when there is no
period of limitation prescribed for exercise
of such powers, the intervening delay, may
have led to creation of thirdparty rights,
that cannot be trampled by a belated
exercise of a discretionary power especially
when no cogent explanation for the delay
is in sight. Rule of law it is said must run
closely with the rule of life. Even in cases
where the orders sought to be revised are
fraudulent, the exercise of power must be
within a reasonable period of the discovery
of fraud. Simply describing an act or
transaction to be fraudulent will not
extend the time for its correction to
infinity; for otherwise the exercise of
revisional power would itself be
tantamount to a fraud upon the statute
that vests such power in an authority."
C/SCA/10501/2006 JUDGMENT
61. Finally in Basanti Prasad v. Chairman,
Bihar School Examination Board 10 it was pointed out
where third party rights are likely to be affected, the
courts decline to interfere but if there is a necessity to
interfere then the aggrieved person should be heard on
merits."
8. Considering the aforesaid observations made in the
aforesaid decision, indisputably, this case is having gross unexplained
delay of 19 years in exercising jurisdiction by the respondent authority
and as such, on that count in substance, the petitions deserve to be
allowed.
9. Apart from that, without going into the merits or demerits
of the case any further, it appears that this Court on earlier occasion
categorically recorded in order dated 21.06.2006 that the rights of the
parties are to be determined on the basis of the civil suit which is
pending in the form of Special Civil Suit No. 215 of 2006 and here,
during the course of hearing, learned senior advocate under the
instructions has also undertaken that the the decision would be binding
to the petitioners, which may be taken in Special Civil Suit No. 215 of
2006 and as such, since the revenue entries have got merely fiscal value
and the rights are not to be determined, the Court found that the
exercise of discretion by the authority in the present background of facts
is not just and proper. In addition thereto, a further note is taken by the
Court that while exercising the revisional jurisdiction in order dated
23.03.2006, it has been observed on the basis of material in last
paragraph of the conclusion reflecting on page 27 that original applicant
Nos. 2 to 5 and opponent Nos. 4 to 8 are not bona fide purchasers and as
such, the case is not possible to be accepted. Now, this conclusion
arrived at by learned Revisional Authority is also outside the scope as the
same is to be determined exclusively by the Civil Court particularly when
the civil suit is very much pending. Thus, overall consideration of the
matter is that the Revisional Authorities have committed illegality in
C/SCA/10501/2006 JUDGMENT
exercising the jurisdiction and the case is made out by the petitioners.
10. Hence, with the above observations and clarification, the
petitions are allowed. Impugned order dated 23.03.2006 and order
dated 02.11.2004 are quashed and set aside.
11. It is made clear that the entries in question and the rights of
the petitioners as undertaken by the petitioners are subject to outcome
of the Special Civil Suit No. 215 of 2006 and would be binding.
12. Rule is made absolute.
(ASHUTOSH J. SHASTRI, J)
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