State Of Gujarat vs Gunvantrai Trambaklal ...
2022 Latest Caselaw 2718 Guj

       C/LPA/69/2022                                   ORDER DATED: 10/03/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/LETTERS PATENT APPEAL NO. 69 of 2022
            In R/SPECIAL CIVIL APPLICATION NO. 19178 of 2015
                                  With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
               In R/LETTERS PATENT APPEAL NO. 69 of 2022
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                          STATE OF GUJARAT
                                 Versus
                   GUNVANTRAI TRAMBAKLAL VADODARIYA
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Appearance:
MR.SAHIL TRIVEDI, AGP for the Appellant(s) No. 1,2,3,4,5
for the Respondent(s) No. 2
MR HRIDAY BUCH(2372) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 3
UNSERVED EXPIRED (N) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                 Date : 10/03/2022

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned Assistant Government Pleader Mr.Sahil Trivedi for the appellant and learned advocate Mr.Hriday Buch for the respondent No.3.

2. In the present Letters Patent Appeal preferred under Clause 15 of the Letters Patent Act, the appellant State seeks to set aside judgment and order of learned Single Judge dated 27.11.2018, whereby learned Single Judge disapproved the exercise of suo motu powers after fifteen years, allowing the petition consequentially to set aside order dated 1.9.2015 passed by the Revisional Authority, as also order dated 24.1.2013 of the Collector.

3. In the petition, the petitioners- respondents herein prayed to

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set aside the orders, further praying to restore mutation entry No.493. It was in respect of the said revenue entry No.493 mutated on 22.5.1985 that the controversy revolved around the land bearing survey Nos.43 and 44 situated at Village Kumbhar, Taluka Botad, District Bhavnagar came to be purchased by the petitioners by sale deed dated 22.5.1985. Mutation entry No.493 was effected in the revenue records reflecting in the said transaction. It is the case of the petitioners that at the time of mutation of the entry, it was pointed out to the authority that the petitioners were doing agricultural activities at another land situated at village Targhara in the same Botad Taluka.

3.1 In the year 1993, the petitioners were given show-cause notice from the Additional Collector, Palitana - respondent No.3, in which it was alleged that the petitioners were not agriculturists and in that view the transaction of purchase of land was bad and the entry was liable to be cancelled in exercise of suo motu powers. The Deputy Collector, Palitana in RTS Case No.125 of 1993 cancelled the entry as per order dated 31.7.2000. The Revision Application preferred by the petitioners there against failed as the Collector dismissed on 3.10.2001. In the revisional proceedings, the Revisional Authority remanded the matter as per order dated 4.5.2012.

3.2 As could be seen from the averments in paragraph No.3.4 of the petition, that the petitioners through their forefathers have been holding agricultural land since the year 1944, that the forefathers of the petitioners belonging to one Vadodariya family initiated a combined agricultural activity in their Vadodariya agricultural farm. It was the case that in the year 1947, partnership firm was created in the name of Vadodariya Farm which carried out the agricultural activities for the benefits of members of the said Vadodariya family. The same was recognized and the revenue

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entries were also mutated in the name of Vadodariya Farm. It was stated that the proceedings were also initiated against the Vadodariya family in respect of the lands in question by the Mamlatdar (Land Ceiling) and in the order, the lands are held by the partners of the land and that the area of land actually held by each of the partner of Vadodariya Agricultural Farm was specifically stated. It was thus the case of the petitioners that they were agriculturists. It was also mentioned that the names of the petitioners were also mentioned in the Vadodariya Agricultural Farm and after demise of Jayantilal Sukhlal- petitioner No.1 took over the administration of Vadodariya Farm which was accepted by the Collector.

3.3 The Collector, however cancelled the entry as per his order dated 21.4.2013. Thereafter the Revision Application No.3 of 2013 was preferred which was dismissed and the order of the Collector was maintained. This led the petitioners to file the Special Civil Application challenging the said orders. Learned Single Judge dismissed the petition resting his reasoning on the ground that suo motu powers were issued by the authorities after unreasonable time after fifteen years.

4. Assailing the impugned judgment and order, learned Assistant Government Pleader submitted that learned Single Judge did not consider properly the fact that the agricultural land may not travel to the hands of non-agriculturists. It was submitted that the petitioners were not agriculturists and have failed to produce any valid or concrete documentary evidence to show that they were validly holding the status of agriculturalists. When they purchased the land in the year 1985, it was submitted, by referring to Section 54 of the Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands Ordinance, 1949 which falls from the Chapter 7 of the Ordinance and which deals with the Restriction on transfers

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of agricultural lands, management of uncultivated lands and acquisition of estates and lands, to highlight that the transfer to non-agriculturists is barred.

4.1 Learned Assistant Government Pleader further submitted that learned Single Judge did not appreciate the fact that Rule 108 of the Gujarat Land Revenue Rules, emphasis the certifying officer to consider the legality and validity of the transaction and he could also consider the status of the agriculturalists and the purchaser. It was submitted that when transaction was barred by Section 54 of the Ordinance, the exercise of suo motu powers was justified.

4.2 On the other hand, learned advocate for the respondent highlighted the case of the petitioners pleaded in the petition that they had agricultural land and they were agriculturists, defending the reasoning of learned Single Judge, he relied on decision of this Court in Dudhiben Muljibhai Patel Vs. State of Gujarat [(2016) SCC Online Gujarat 6076] to submit that even otherwise the proposition is that the statutory powers vested in authority would be required to be exercised within reasonable time, that case was also about cancellation of mutation entry. The Deputy Collector directed the cancellation and the Mamlatdar mutated the entries in the name of the petitioners in respect of the land in question which was pursuant to the registered sale deed executed in favour of the petitioners. Exercise of powers after long gap of three decades was disapproved. It was observed that the revenue authorities under revenue jurisdiction cannot be allowed to offset the action taken long back. It was held that the entries in question could not be allowed to go off and obliterated from the revenue record.

4.3 Learned Single Judge thus found that the deceased Jayantilal was not agriculturists and he did not have any land in his name was

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not well conceived on facts and that they were casual observations. Learned Single Judge thereafter highlighted the purpose of Section 54 of The Ordinance Act, 1949, that it was to protect the interest of the agriculturists or the agricultural labourer, stating further that therefore the restriction have been placed on the transfer of agricultural land without prior approval.

4.4 It was stated in paragraph No.20,

"...The object is that the land is not taken away or transferred by a person in favour of one who is not an agriculturist, and therefore, such restrictions have been placed with further riders regarding income criteria existing. Therefore there is no quarrel about the underlying purpose and the object of the Ordinance Act of 1949 for which the Ordinance Act of 1949 has been enacted with necessary restrictions. However, the moot question is the justification of exercise of powers beyond a reasonable period and whether such exercise of power at belated stage could be sustained."

4.5 Learned Single Judge underlined the principle enunciated by the courts that statutory authority vested with powers has to exercise the same within reasonable time. Learned Single Judge referred to the said principle on the decision of the Supreme Court in State of Gujarat Vs. Patel Raghav Natha [(1969 2 SCC 187], also in Santoshkumar Shivgonda Patil Vs. Balasaheb Tukaram Shevale and Others [(2009) 9 SCC 353] and on the decision of this court in Chandulal Gordhandas Ranodriya and Others Vs. State of Gujarat [(2013) 2 GLR 1788], wherein the law came to be laid down emphasizing the propriety to be observed in exercise of powers within reasonable time and that exercise of statutory powers beyond reasonable period would not be justified and would render the exercise arbitrary. Learned Single Judge recorded factual controversy in paragraph No.19,

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"...late Jayantilal Rambaklal was a vahivat karta or the Manager of the Vadodariya Agricultural Farm, but was not having any agricultural land in his individual capacity and therefore he was not an agriculturist. His heirs, who are the petitioners, are not having the status of the agriculturist. This aspect as recorded herein above, has not been appreciated in background of the fact that it was a joint family holding the agricultural land and it was looked after by Jayantilal as a Manager or the vahivat karta, which has also been accepted by the Collector way back in 1993. Further, the earlier proceedings and the remand of the matter would also reflect that late Jayantilal has been accepted as a tenant since 1955 and the land known as Vadodariya Agricultural Farm is with the petitioners and the family since 1944. Therefore, the casual observations that the deceased Jayantilal was not an agriculturist as he does not have any land in his name is misconceived."

4.6 Learned Single Judge noted that the law laid down in the Patel Raghav Natha (supra) came to be reiterated in decision of the Division Bench of this court in Chandulal Gordhandas Ranodriya (supra) thus,

"It must be fairly said that if the statue 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."

5. The need to exercise the suo motu powers within reasonable time has been time and again emphasized by the courts. Right from

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the decision of the Apex Court in State of Gujarat Vs. Patel Raghav Natha [AIR 1960 SC 1297], the principle is well settled that statutory authority is required to exercise its powers within a reasonable time even though no time limit may have been prescribed for such exercise. This law was reiterated by this Court in Bhagwanji Bawanji Vs. State of Gujarat [1971 GLR 156] and Ranchhodbhai Vs. State [25 (2) GLR 1225]. In case of Ranchhodbhai (supra), it was held that the proceedings initiated against the purchaser of the agricultural land allegedly in contravention of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, after a period of seven years was without jurisdiction. Similar, proposition was laid down in Rajul Cooperative Housing Society Ltd. v. State [1984 GLH 968].

5.1 In Dudhiben Muljibhai Patel (supra), the court observed,

"...it clearly emerges that the Deputy Collector exercised the powers after a long gap of 32 years. It is cardinal principle that any statutory power vested in an authority would be required to be discharged within a reasonable time, even if no period is prescribed for such exercise. Inordinate and unreasonable delay is treated as vitiating factor itself. The principle applies with force in respect of the powers exercised or functions discharged by the revenue authorities under the revenue jurisdiction and they are not allowed to upset the action taken long back which may have resulted into vesting of rights and creation of equities with passage of time". In the present case also the aforesaid ground of delay of eight years in exercising suo motu powers by the Collector, Surat, by deciding Revision No.198 of 2000 is yet another consideration rendering the petition liable to be dismissed."

5.2 Any statutory authority including revenue authorities, when exercises powers vested in it as per the statute under which it

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functions, the exercise affects the rights of the parties who are dealt with by the authority. It is trite that long existing position and rights settled between the parties since long are not made to upset. If the statutory authorities are permitted to exercise powers irrespective of time and as per the their whims, it would result into unnecessarily upsetting the rights between the parties and rendering the equities which may have crystallized to ripe in form of the rights. It is in this view that the principle is evolved by the courts that statutory authorities are enjoined to exercise their power within reasonable time irrespective of description of period of limitation in the statute under which they function. All statutory powers are required to be exercised within reasonable time else exercise would be arbitrary. The dictum of law that powers including the suo motu powers are to be exercised within reasonable time is well settled as above.

6. In the present case, suo motu powers is after fifteen years, which time is too long to be considered reasonable from any standpoint. In that view, learned Single Judge was eminently justified in holding that the orders passed by the Collector and confirmed by Revisional Authority were vitiated on the ground of exercise of powers after unreasonable time. No error could be booked in the impugned order passed by learned Single Judge.

7. The Letters Patent Appeal stands meritless. It is dismissed accordingly.

The Civil Application would not survive since the main Appeal is dismissed. Accordingly, it is disposed of.

(N.V.ANJARIA, J)

(SAMIR J. DAVE,J) Manshi