State Of Gujarat vs L H Of Dced Rupshibhai Devrajbhai ...
2021 Latest Caselaw 15805 Guj

     C/LPA/226/2021                          ORDER DATED: 07/10/2021




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
            R/LETTERS PATENT APPEAL NO. 226 of 2021
        In R/SPECIAL CIVIL APPLICATION NO. 11048 of 2018
                               With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
           In R/LETTERS PATENT APPEAL NO. 226 of 2021
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                       STATE OF GUJARAT
                             Versus
            L H OF DCED RUPSHIBHAI DEVRAJBHAI DARJI
==========================================================
Appearance:
Mr. Tirthraj Pandya, Asst. GOVERNMENT PLEADER(1) for the
Appellant(s) No. 1,2,3,4
for the Respondent(s) No. 1,1.1,1.2,1.3,1.4,2,3,4
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 CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
       R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE BIREN VAISHNAV
                  Date : 07/10/2021

                       ORAL ORDER

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE R.M.CHHAYA)

1. Feeling aggrieved and dissatisfied with the judgment and order dated 13.2.2020 passed in Special Civil Application No.11048 of 2018, the State and its authority have preferred this appeal under Clause 15 of the Letters Patent.

2. The following facts emerge from the record of the appeal.

2.1. That land belonging to the respondents- original petitioners being survey no.468 admeasuring 01-67-75 Hectare- Are sq mtrs is situated at village Asara, Tal: Vav, District Banaskantha. As the record unfolds entry

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no.9 of promulgation was mutated in the name of Darji Ganeshbhai Devrajbhai. It appears from the record that the said entry was mutated for the land in question as Inami land. It is also evident from the record that the name of Ganeshbhai Darji was mutated as he was eldest brother and all heirs of Devrajbhai had their share in the land in question. On death of Ganeshbhai Darji, name of his heirs came to be mutated by the entry in question on 17.5.1970 and the tenure of the land is an old tenure. The record further indicates that on 1.11.1975 an entry being no. 273 was mutated which recorded family partition between heirs of Ganeshbhai Darji. The said position continued for about 38 years. The Deputy Collector thereafter initiated proceedings as provided under Section 79 A of the Gujarat Land Revenue Code on the ground that the respondents - original petitioners did not have any receipt of occupancy rights and after lapse of 38 years, such powers were exercised, which culminated into an order dated 29.11.2014. The said order was challenged by the respondents - original petitioners before the District Collector by filing Appeal being No.14 of 2015, which came to be dismissed vide order dated 13.10.2016. The respondents - original petitioners challenged both the orders before the learned Special Secretary, Revenue Department (Appeals) by way of filing Revision Application as provided under Section 211 of the Gujarat Land

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Revenue Code, which culminated into order of rejection dated 1.5.2018 / 9.5.2018. The respondents- original petitioners being aggrieved by the said orders preferred writ petition being Special Civil Application No.11048 of 2018 before this Court. The learned Single Judge after appreciating the facts on record, came to the conclusion that the suo motu powers cannot be exercised after a delay of 38 years and entry cannot be set aside and land cannot be forfeited. Being aggrieved and dissatisfied with same, present appeal is filed by the present appellants under Clause 15 of the Letters Patent.

3. Heard Mr. Tirthraj Pandya, learned Assistant Government Pleader for the Appellants - State. We have gone through the record of this appeal, more particularly impugned orders as well as judgment impugned rendered by the learned Single Judge. Mr. Pandya, learned Assistant Government Pleader contended that though it was a pasayat chakariyat land, the occupancy price has not been paid and that the entry in question was wrongly mutated in favour of respondents- original petitioners. Mr. Pandya, learned Assistant Government Pleader contended that the learned Single Judge has committed an error in allowing the writ petition and quashing and setting aside the concurrent findings given by the authority below only on the ground of delay of 38 years. Mr.

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Pandya, learned Assistant Government Pleader submitted that the said lacuna in the title would permit the authority to take action as and when same was noticed and therefore, it was contended that the appeal requires consideration. Mr. Pandya, learned Assistant Government Pleader also contended that the respondents- original petitioners have failed to establish any evidence to show their possession and the land was regularized by making payment of necessary occupancy price as provided under the policy of the State Government. On the aforesaid grounds, it was therefore, contended that the appeal deserves consideration.

4.0. No other and further submissions / contentions / grounds have been made by the learned advocate for the appellants.

5.0. It is an admitted position that suo motu action were initiated by the Deputy Collector after a period of 38 years. The entry no.145 dated 17.5.1970 is an entry relating to land in question and is titled as succession. It is mentioned in the village form no.6 that land in question runs in the name of Darji Ganesh and that he has expired before about 7 years and it is further stated that direct descendants of late Ganesh Darji are Darji Vagha Ganesh, Magan Ganesh and Shantaben as guardian of Bai Satu. The said entry after following

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due process as prescribed under the Gujarat Land Revenue Code came to be certified on 23.6.1970. The revenue record of this appeal shows that thereafter entry no.265 was mutated on 2.4.1975 which records that Nagjibhai Vasta as family member of Darji Vagha be recorded and even the possession of the Darji Nagji Vasta is mentioned. Such entry came to be certified on 22.12.1975. The village form no. 7/12 also indicates that it is an old tenure wherein names of Darji Rupsibhai Devrajbhai, Darji Nagabhai Danabhai, Darji Chamanbhai Danabhai and Darji Vajabhai Danabhai are mutated vide entry no. 273 and accordingly same is recorded in revenue record of form no.8A. On bare perusal of the order in original passed by the Deputy Collector also indicates that the notice to the original respondents was issued on 18.08.2014 i.e. after a period of more than 38 years. The authorities below have reiterated the observations made by the Deputy Collector in its order in original and has not considered any submission made by the respondents - original petitioners. The learned Single Judge has observed thus:

"8. It is well settled that the suo motu powers have to be exercised within a reasonable period of 3 years. It is not the case that the predecessors of the petitioners have committed any fraud. Even otherwise, the respondent authorities should have initiated appropriate proceedings during the life time of the father of the petitioners. The suo motu proceedings are initiated after gross delay of 38 years and in the considered opinion of this Court, such exercise of powers is required to be deprecated. This Court as well as the Supreme Court in the aforementioned judgments has set aside the exercise of suo motu powers after a delay of

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more than 3 years.

9. At this stage, it would be apposite to refer to the observations made by the Division Bench of this Court in the case of Labhubhai Valjibhai Gajera (supra), which read thus:

"15. In view of the facts of present case, the appeal, on this limited ground, deserves to be allowed. It appears that the appellant herein had raised the said contention before the learned Single Judge in the petition as well. Even in the reply affidavit filed by present opponents, the factual assertion by the petitioner-appellant viz. with regard to the period when the transaction was entered into and the period when the notice under the Act was issued, are not denied or disputed. Thus, the factual aspects regarding the period of transaction and impugned notice being not in dispute, are established, which in turn establish that the impugned proceedings and the orders by the authorities are hit by the vice of delay of more than about 3 years. Hence, in view of the decision of the Hon'ble Apex Court in the case of Mahamad Amin (supra) the initiation of proceedings under the Act after delay of three years is, in the facts of present case, not found to be within reasonable period."

10. Thus, in view of the law enunciated by the Supreme Court as well as this Court, the impugned proceedings and the impugned orders of the authorities are hit by doctrine of delay and hence, the same are required to be quashed and set aside."

6. At this juncture, it would be also profitable to refer to the judgment of the Hon'ble Supreme Court in the case of Telangana Housing Board vs. Azamunnisa Begum (Died) Through Legal Representatives and Others reported in (2018) 7 SCC 346 wherein the Hon'ble Supreme Court has considered reasonable period for making a claim under Section 87 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 and has observed thus:

"58. We are also not satisfied with the delay by the respondents in making a claim under Section 87 of the Act.

The contention of the respondents is that since there is no

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time limit specified for filing a claim petition, they could have made a claim at any point of time, particularly for correcting a clerical error.

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. InCollector v. P. Mangamma it 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 Natha, it was observed that when even no period of limitation was prescribed, the power is to be exercised within a 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 the exercise of revisional jurisdiction where no time-limit 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 third-party 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."

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61. Finally in Basanti Prasad v. Chairman, Bihar School Examination Board10 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.

62.Insofar as the facts of the present case are concerned, the claim made under Section 87 of the Act was after a period of at least 25 years. This can hardly be described as a reasonable period. There is no explanation for the inordinate delay and to make matters worse, third party interests have been created through a Housing Scheme developed on the land in dispute or in any event on the surrounding land. After a further lapse of 25 years it is not possible to put the clock back, even if there is any reason to do so, which reason we cannot even visualise in this case."

7. In the case on hand, it is an admitted position that powers were exercised by the Deputy Collector after a lapse of 38 years. It is also a matter of fact that there is no allegation of fraud and by no stretch of imagination it can be said that period of 38 years is reasonable in any manner whatsoever. We are in total agreement with the reasoning given by the learned Single Judge. No interference is called for. Present appeal fails and is hereby dismissed. However, there shall be no order as to costs.

As the appeal is dismissed, connected civil application stands dismissed.

sd/-

(THE ACTING CHIEF JUSTICE R.M.CHHAYA, J)

sd/-

(BIREN VAISHNAV, J) KAUSHIK J. RATHOD