Gujarat High Court
Jaipalsinh Pravinsinh Zala vs State Of Gujarat on 8 April, 2022
Bench: A. P. Thaker
C/SCA/6848/2019 JUDGMENT DATED: 08/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6848 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JAIPALSINH PRAVINSINH ZALA
Versus
STATE OF GUJARAT
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Appearance:
MR PREMAL S RACHH(3297) for the Petitioner(s) No. 1,2
MS. DHWANI TRIPATHI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4,5
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 08/04/2022
ORAL JUDGMENT
1. Being aggrieved and dissatisfied with the order dated
26.11.2018 passed by respondent No.2 in Revision
Application No. MVV/JMN/RJT/62/2018 whereby revision
preferred by the petitioner came to be dismissed and order
dated 10.9.2018 passed by Collector dismissing the Appeal
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preferred by the petitioner being Land/ Appeal/ 2003/ Case
No. 19/2016-17 came to be confirmed, the petitioner has
filed the present petition under Article 226 of the
Constitution of India for the following relief:
"(A) YOUR LORDSHIPS be pleased to issue an appropriate writ, order
and/ or direction, quashing and setting aside the order dated
26.11.2018 passed by Respondent No.2 in Revision No.
MVV/JMN/RJT/62/2018 (Annexure A), the order dated 10.9.2018
passed by Respondent No. 3 Collector in Land/ Appeal/ 203/ Case
No. 19/16-17 (Annexure B) and the order dated 29.09.2015
passed by Respondent No. 4 Deputy Collector in the proceedings
of 2/JM-2/Navi Juni/ File No. 6/2015 (At Annexure C) and be
pleased to restore the order dated 21.3.2002 passed by
Respondent No.5 Mamlatdar (Annexure D).
(B) Pending admission hearing and till final disposal of this petition,
YOUR LORDSHIPS be pleased to grant stay of the order dated
26.11.2018 passed by Respondent No.2 in Revision No.
MVV/JMN/RJT/62/2018 (Annexure A), the order dated 10.9.2018
passed by Respondent No. 3 Collector in Land/ Appeal/ 203/ Case
No. 19/16-17 (Annexure B) and the order dated 29.09.2015
passed by Respondent No. 4 Deputy Collector in the proceedings
of 2/JM-2/Navi Juni/ File No. 6/2015 (At Annexure C) in the
interest of justice;
(BB) YOUR LORDSHIPS may be pleased to direct respondent revenue
authorities to mutate the revenue entry in village form no.6
recording the registered sale transaction in favour of the
petitioner and update the record of rights in the interest of
justice and equity;
(C) YOUR LORDSHIPS be pleased to grant such other and further
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reliefs in favour of the petitioners, as deemed fit in the interest of
justice."
2. The brief facts of the petition are as under:
2.1 The issue involved in the present petition is that land
bearing Revenue Survey No. 229 Paiki- 13 admeasuring
about 10 acres situated at village Ratanpur, Taluka &
District: Rajkot. The land in question was allotted by the
State Government in Santhni to Shri Devabhai Bhalabhia
and others vide order dated 7.1.1972. Entry to that effect
was recorded in the revenue record vide entry No. 373 and
it was certified on 1.10.1974. In the year 2002, pursuant to
the application made by the owners of the land for
converting the land into old tenure land, the respondent
No.5 i.e. Mamlatdar in exercise of power under Section 65
of the Gujarat Land Revenue Code, after following legal
procedures and after obtaining requisite permission from
the higher authority, passed order dated 21.3.2002 for
converting the land into old tenure land.
2.2 On 28.2.2005, the petitioners have, after verifying all the
records and satisfying themselves about the clear title of
the land in question, purchased the said land by registered
sale deed from the owners through their Power of
Attorney. The petitioners have started developing the land
by investing huge money.
2.3 On 29.9.2016, the Deputy Collector (Respondent No.4) ,
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after almost 13 years, took in suo-motu, the decision of
respondent No.4 by exercising power under Section 211 of
Gujarat Land Revenue Code, issued notice to the
petitioners and the petitioners duly responded to it.
However, the respondent No.4 set aside the order of the
Mamlatdar granting the conversion of the land. The said
order came to be challenged by the petitioner before the
Collector by way of Appeal, however, the same came to be
dismissed. The same was challenged by the Petitioner
before SSRD and it was also dismissed. According to the
petitioner, the entire exercise undertaken by the authority
is beyond reasonable point of time. The petitioners are
bonafide purchaser of the land and when they have
purchased land the mutation entry was already made in the
revenue record. It is also contended that there are various
Government Resolutions whereby the authority ought not
to have passed the impugned order. By referring to the
various decisions, it has been contended that exercise of
power after 13 years is bad in law and on this ground, it is
prayed to allow the petition.
3. Heard Mr. P.S. Rachh, learned advocate for the petitioners
and Ms. Dhwani Tripathi, learned AGP for the respondent
State. Perused the material placed on record.
4. Mr. Rachh, learned advocate for the petitioners has
submitted the same facts which are narrated in the memo
of the petition. He has submitted that the authority has not
followed the government Policy of 2006, 2008, 2011 as well
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as 2016 in respect of the conversion of the land from new
tenure to old tenure. He has submitted that though there
are two transactions, but both the transactions covers the
land of 6 Acres and 14 gunthas and there is no breach of
any Act. He has also submitted that the conversion of the
land was ordered in the year 2002 and after 13 years, suo-
motu power is exercised which is beyond reasonable
period. He has also submitted that it is the duty of revenue
authority to follow the Policy of the government. He has
submitted that the authority be directed to make revenue
entry in respect of sale transaction in favour of the
petitioner and the impugned order of the Mamlatdar
granting permission of conversion of new tenure land to
old tenure land be restored. He has relied upno the
decision in the case of Hasmukhbhai Dahyalal Soni v.
Collector- Gandhinagar, reported in 2018 JX (Guj) 652 for
this proposition of exercise of revisional power after
unreasonable delay.
5. Per contra, Ms. Tripathi, learned AGP has submitted that
the order of the learned Collector is proper as before
granting permission of conversion of land, the subordinate
authority has not taken into consideration the fact that
there are two pieces of land and there was no actual
verification of the possession of the land and, therefore,
the impugned order of the Collector is proper one. She has
also submitted that the Deputy Collector has already
directed to initiate appropriate proceedings under the
Government Circular dated 4.7.2008 and till such exercise is
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completed, no order be passed. She has submitted that
there is no delay on the part of the authority and has
supported the order of the authority and prayed to dismiss
the present petition.
6. Having considered the submissions made on behalf of both
the sides as well as material placed on record, it emerges
that there is no dispute that the land in question was
initially granted to Chhaganbhai Bhalabhai and others as a
new tenure land. Thereafter, the Mamlatdar vide its order
dated 21.3.2002, has granted permission for conversion of
new tenure land to old tenure land. It appears from the
record that order of the Mamlatdar has been taken into
revision after 13 years. It also reveals from the papers
submitted with the matter that the land has been sold in
two pieces by the registered sale deed one is 3 Acres 14
gunthas and another is of 3 Acres. Both the land are
adjacent to each other. On perusal of the sale deed
produced in the matter (Page Nos. 34 to 55), it reveal that
as per Map at Page-45 and 54, both the lands are adjacent
to each other. There is no gap between the two lands. Thus,
basis of land being in two pieces, even if accepted, does not
reflect that both the pieces are away from each other or
there is a gap between the two lands. Thus, the observation
of the Deputy Collector and Collector are not based upon
the proper reading of the documents.
7. It is pertinent to note that the government has made Policy
decision vide various circulars beginning from 1996. Some
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of the Circulars are produced in this matter, dated
19.10.2000 (Page-56), dated 2012.2006 (Page-58), dated
4.7.2008 (Page-61), dated 3.5.2011 (page-720 and dated
4.10.2016 (page-75) and in almost all circulars, the
government has made Policy of conversion of new tenure
land to old tenure land on certain conditions. From Circular
dated 19.10.2000, it appears that the person in possession
of new tenure land for more than 15 years, could apply for
conversion of land from new tenure to old tenure land and
after following due procedure, the authority has power to
convert the same. Now, in this case, Mamlatdar has passed
the order of conversion of land from new tenure to old
tenure in the year 2002. Admittedly, the land was given in
Santhni in the year 1972. Thus, after 30 years of passage of
time, the order of conversion of new tenure land to old
tenure land has been passed by the Mamlatdar and that too
after following due procedure. This action has been taken
into suo-motu by the authority after 13 years of passage of
time. Now, it is well settled principle of law that the
exercise of power under Section 211 of the Gujarat Land
Revenue Code i.e. the revisional power needs to be
exercised in a reasonable period of time. Admittedly, in the
present case, the power has been exercised after almost 13
years, which cannot be said to be exercise of power within
reasonable time. The Court in the case of Hasmukhbhai
Dahyalal Soni v. Collector- Gandhinagar (Supra) , in Para-24,
has observed as under:
"24. To sum up, delayed exercise of revisional jurisdiction is
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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".
8. In view of the aforesaid observation, in the present case,
the exercise of power by the authority is beyond
reasonable period of time and is not sustainable in the eyes
of law.
9. In view of the aforesaid facts, the present petition deserves
to be allowed and accordingly it is allowed.
The impugned orders dated 29.09.2015 passed by
Respondent No. 4 Deputy Collector in the proceedings of
2/JM-2/Navi Juni/ File No. 6/2015, the impugned order
dated 10.9.2018 passed by Respondent No. 3 Collector in
Land/ Appeal/ 203/ Case No. 19/16-17 and the order dated
26.11.2018 passed by Respondent No.2 in Revision No.
MVV/JMN/RJT/62/2018 are hereby quashed and set-aside
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and the order dated 21.3.2002 passed by Respondent No.5
Mamlatdar is restored. The Revenue Authority is directed
to make entry in the Revenue Records regarding the sale-
deeds of the petitioners.
Rule is made absolute accordingly. No order as to
costs.
Direct Service is permitted.
(DR. A. P. THAKER, J)
SAJ GEORGE
