Gujarat High Court

Naresh Ramanlal Doshi vs State Of Gujarat on 6 February, 2023

Bench: A.S. Supehia

     C/SCA/6475/2022                             JUDGMENT DATED: 06/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6475 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.S. SUPEHIA

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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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                        NARESH RAMANLAL DOSHI
                                Versus
                          STATE OF GUJARAT
==========================================================
Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 2,3
UNSERVED REFUSED (N) for the Respondent(s) No. 4,5
==========================================================

    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                             Date : 06/02/2023

                            ORAL JUDGMENT

1. Rule. Learned Assistant Government Pleader

C/SCA/6475/2022 JUDGMENT DATED: 06/02/2023

Mr.Kanara, waives service of notice of rule on behalf of the

concerned respondent authorities.

2. Though served, the respondent No.5 has refused

to accept the notice of this Court. It is also pertinent to note

that the entire proceedings are initiated by the respondent

No.5, who has chosen not to appear before this Court.

3. On 31.03.2022, this Court issued Notice to the

respondents returnable on 21.04.2022.

4. In the present petition, the petitioner has prayed

for quashing and setting aside the impugned notice dated

02.07.2021 issued by the Mamlatdar and ALT in Tenancy

Case No.19 of 2021 and further prayed for quashing and

setting aside the order dated 06.04.2022 passed by the

Mamlatdar and ALT in Tenancy Case No.19 of 2021.

5. Brief facts leading to filing of the present writ

petition are as under : -

C/SCA/6475/2022 JUDGMENT DATED: 06/02/2023

5.1 It is the case of the petitioner that the dispute

pertains to lands bearing Revenue Survey No.2515/1,

2515/2 and 2515/2/2 situated at village Gothda, Taluka

Savli, District Vadodara. The lands bearing Sr. No. 2515/1,

2515/2 and 2515/2/2 were purchased by Ramanlal

Shakarlal Doshi from Lakhiben Bhikhabhai and Others by

way of registered sale deeds dated 05.04.1995. The

mutation entries with regard to the said lands were mutated

on 05.04.1995 and were certified being Entry Nos.11428

and 11429.

5.2 It is further case of the petitioner that there was a

family arrangement for which mutation Entry No.12145 was

mutated on 22.01.1999 with regard to some of the lands,

which came to the share of Naresh S/o Ramanlal Doshi.

The said Ramanlal Doshi passed away on 19.01.2015,

however as per family arrangement, partition of the land in

question came to the share of Naresh Ramanlal Doshi and

all rights with regard to the land in question were released

in favour of Naresh Ramanlal Doshi by all legal heirs of

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Ramanlal Doshi executing a relinquishment deed dated

25.05.2015.

5.3 The Mamlatdar & ALT, Savli issued a notice dated

02.07.2021 under Section 63-A and 63-B of the Gujarat

Tenancy & Agricultural Lands Act, 1947 (for short, "the

Tenancy Act") to the petitioner. In the said notice, the

Mamlatdar & ALT, Savli has mentioned that for the lands in

question, he was to conduct an inquiry under Section 63-A

and 63-B of the Tenancy Act and wanted to verify the

agriculturist status of Ramanlal Shankarlal Doshi.

Thereafter, the Mamlatdar & ALT has asked the petitioner to

produce documents from 1952 onwards to show the

agriculturist status. The said notice has been issued

purportedly on the basis of a complaint made by Rana

Harunbhai Anwarbhai alleging that the petitioner is not an

agriculturist.

6. Learned advocate Mr Majmudar, has submitted

that the lands were purchased by Ramanlal Shankarlal

Doshi somewhere in the year 1995 vide registered sale

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deeds. Entry Nos. 11428 and 11429 dated 05.04.1995 were

posted in the revenue record, followed by due certification. It

is submitted that thereafter, as a result of the family

partition, the lands came in favour of Nareshbhai Ramanlal

Doshi, his son which war recorded in the Revenue Records

by way of Entry No. 12145 dated 22.01.1999. Thereafter, no

steps were taken.

6.1 It is submitted that apropos the complaint filed

by a third party, who had no interest in the land, the

proceedings were initiated by issuance of the notice dated

02.07.2021 by the Mamlatdar, Savli, requiring the petitioner

to produce on record the village form no.7/12 and other

relevant documents from the year 1951-1952, so as to

substantiate the status of the agriculturist of Shri Ramanlal

Shankarlal Doshi.

6.2 It is submitted that the said notice was

challenged before this Court and during the pendency, the

Mamlatdar, showing undue haste has passed the order

dated 6.4.2022, possibly because of the pressure exerted by

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the complainant. It is also submitted that had there been no

pressure, the Mamlatdar would have chosen not to initiate

any proceedings at this distance of time. It is submitted that

the land was purchased in the year 1995 and the

proceedings have been initiated after the delay of almost 26

years.

6.3 It is submitted that such delayed action, is a

jurisdictional error and therefore, the writ petition is very

much maintainable against the order of the Mamlatdar.

Reliance is placed on the judgment in the case of Seemaben

Ajaykumar Ranka vs. State of Gujarat passed in Special

Civil Application no.12783 of 2016 wherein, this Court,

while relying upon the judgment in the case of Bharatbhai

Naranbhai Vegda vs. State of Gujarat reported in 2016 (2)

GLR 1021 held and observed that initiation of the

proceedings after unreasonable period, would not be

sustained inasmuch as, the action and the initiation of the

proceedings, are without jurisdiction. Reliance is also placed

on the judgment of the Division Bench of this Court in the

C/SCA/6475/2022 JUDGMENT DATED: 06/02/2023

case of Bharatbhai Naranbhai Vegda vs. State of Gujarat

rendered in Letters Patent Appeal no.798 of 2011 wherein, it

is observed that for the proposition that if the action is

initiated beyond the unreasonable period, that would be

without jurisdiction. It is submitted that this Court has held

and observed that the bar of delay operates against the

exercise of the jurisdiction or that the initiation of the action

is beyond reasonable period, the action, can be said as

without jurisdiction.

7. Learned Assistant Government Pleader has

submitted that once the petitioner participated in the

proceedings before the Mamlatdar and has also sought

adjournment, it is not open for him to challenge the same.

He has submitted that the impugned order as well as the

impugned notice, at the most, may be set and aside and the

matter may be remanded to the Mamlatdar.

8. I have heard the learned advocates appearing for

the respective parties.

C/SCA/6475/2022 JUDGMENT DATED: 06/02/2023

9. The afore-noted facts suggest that the

proceedings by invoking the powers under Section 84(C)

read with Section 63 of the Tenancy Act, have been initiated

after a period of almost 26 years. It is well settled

proposition of law as enunciated in various judgments and

orders of this Court, one of them being the judgment dated

29.07.2015 passed in Letters Patent Appeal No.798 of 2011

that the initiation of the proceedings by the authorities

beyond a reasonable time are nullity and the authorities do

not have the powers to call in question any revenue entries

after a reasonable period. In the present case, there is a

delay of 26 years.

10. At this stage, it would be apposite to refer to the

observations made by the Division bench in the judgment

dated 29.07.2015, which read as under : -

"10. In our view, the above referred well considered two decisions of this Court makes the position abundantly clear that if the action is to be initiated for setting aside of a transaction under the Ordinance by invoking section 54 read with section 75 of the Ordinance, it has to be within reasonable period. The above referred two

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decisions are in respect of the cases wherein the powers were exercised and proceedings were initiated after 5 years and 17 years respectively, whereas in the present case, it is after more than 35 years. Hence, we find that the initiation of the action itself can be said as beyond reasonable period and the bar of delay and laches could operate against the authority in initiation of the action. The aforesaid aspect is coupled with two additional circumstances, one is that the land has changed hands further during the period of delay and the ownership is transferred by the purchaser to the another person and the second is that the revenue entries were mutated. Thereafter, they were also certified by the competent authority and in spite of that, no action was taken for cancellation of such entry or otherwise or even for declaration of the transaction as invalid within reasonable period. If during the period of delay, the rights of the parties in the properties are altered, the delay would operate as a bar with more gravity and when the ownership is changed during the period of delay, the bar for not taking action within reasonable period would also operate with more gravity against the authority in initiation of the action.

12.We may first consider the question for interference to the order passed by the learned Single Judge. There cannot be second opinion on the aspect that if two views are possible and the learned Single Judge has taken one view, the Division Bench of this Court in exercise of the jurisdiction under Letters Patent would be loathe to interfere and may not entertain the appeal, but in a case where only one view was possible or that well settled legal position is not considered, which goes to the root of the matter for the

C/SCA/6475/2022 JUDGMENT DATED: 06/02/2023

jurisdiction of the authority, such would be an appropriate case for interference for exercise of the jurisdiction under the Letters Patent. Examining the case on the said aspects, we find that as per the above referred decisions of the Apex Court, the limitation provided for initiation of the action or the consideration of the reasonable period for initiation of the action or the bar operating of delay for initiation of the action are jurisdictional aspects on the power of the authority which has initiated the action. If as per the well settled principles of law, the bar of delay operates against the exercise of the jurisdiction or that the initiation of the action is beyond reasonable period as per the well settled principles of law, the action can be said as without jurisdiction. If an action is without jurisdiction, as observed by the Apex Court in the above referred decision in the case of State of Punjab (supra), the petition under Article 226 of the Constitution can be maintained and the jurisdiction of this Court under Article 226 of the Constitution can be invoked. If the action is decided on the ground of jurisdiction and found to be without jurisdiction by the Court while undertaking judicial scrutiny under Article 226 of the Constitution, the only view possible is that of the action without jurisdiction. If the action was without jurisdiction, we do not see that it would fall in the arena of discretion to be considered while exercising the power under Article 226 of the Constitution. We may record that the contention is not based on the conduct on the part of the petitioners which may lead the Court to decline the interference but the contention is on the ground that two views were not possible as against the settled legal position on the point of reasonable period and the delay for initiation of action. Hence, we find that this is a fit case for interference with the order passed by the learned

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Single Judge and it cannot be said to be outside the jurisdiction of the appellate power of the Division Bench of this Court in Letters Patent as sought to be canvassed."

11. Further, in the order dated 09.03.2018 passed in

Special Civil Application No.12783 of 2016, the Co-ordinate

Bench after considering the judgment of the Division Bench

has held thus: -

"5. The Division Bench of this Court in Bharatbhai Naranbhai Vegda and others Vs. State of Gujarat and others [2016 (2) GLR 1021] was dealing with the question of Show Cause Notice issued for cancellation of mutation entry on the ground of breach of Saurashtra Gharkhed, Tenancy Settlement and Agricultural Land Ordinance, 1949.

5.1 The Division Bench observed and held thus :

"Taking in view, the above referred well considered two decisions of this Court makes the position abundantly clear that if the action is to be initiated for setting aside of a transaction under the Ordinance by invoking Sec.54 read with Sec.75 of the Ordinance, it has to be within reasonable period. The above referred two decisions are in respect of the cases wherein the powers were exercised and proceedings were initiated after 5 years and 17 years respectively, whereas in the present case, it is after more than 35 years. Hence, the initiation of the action itself can be said as beyond reasonable period and the

C/SCA/6475/2022 JUDGMENT DATED: 06/02/2023

bar of delay and laches could operate against the authority in initiation of the action and when the ownership is changed during the period of delay, the bar for not taking action within reasonable period would also operate with more gravity against the authority in initiation of the action. (Para 10)"

5.2 It was held that when the bar of delay operated, the exercise of power was without jurisdiction, "The bar of delay operate against the exercise of the jurisdiction of that the initiation of the action is beyond reasonable period as per the well settled principles of law, the action can be said as without jurisdiction. If an action is without jurisdiction, as observed by the Apex Court in the above referred decision in the case of State of Punjab v. Bhatinda District Co- op. Milk Producers Union Ltd., 2007 (11) SCC 363, the petition under Art.226 of the Constitution can be maintained and the jurisdiction of this Court under Art.226 of the Constitution can be invoked. (Para 12)"

6.The aforesaid law applies to the facts of the case. The proceedings initiated by issuance of Show Cause Notice after long 20 years in the present case would not be sustained. The action and the initiation of proceedings are rendered without jurisdiction. For this very reason, the contention of availability of alternative remedy attempted to be raised by the other side is hereby overruled. When an action is patently illegal lacking in jurisdiction, and when it stands contrary to the decision of this Court in Bharatbhai Naranbhai Vegda (supra), this petition under Article 226 of the Constitution could be entertained.

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12. So far as the contention raised by the learned

AGP that having participated in the proceedings, it was not

open for the petitioner to challenge the same, does not merit

acceptance, since if the proceedings in fact are without

jurisdiction and nullity, the parties even after participating

in the proceedings, can challenge such proceedings, at any

stage.

13. Resultantly, the present petition succeeds. The

impugned show cause notice dated 02.07.2021 and the

consequential order dated 06.04.2022 passed by the

Mamlatdar and ALT in Tenancy Case No.19 of 2021 are