Parbatbhai Hadabhai Rafaliya vs The Special Secretary (Appeals)
2023 Latest Caselaw 150 Guj

      C/SCA/18478/2019                                         ORDER DATED: 06/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 18478 of 2019
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 18479 of 2019
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                          PARBATBHAI HADABHAI RAFALIYA
                                      Versus
                         THE SPECIAL SECRETARY (APPEALS)
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1
SHRENIK R JASANI(9486) for the Petitioner(s) No. 1
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 1,2,3,4.1,4.2,4.3,4.4,4.5,4.6,4.7
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 06/01/2023
               COMMON ORAL ORDER

1. RULE. Learned Assistant Government Pleader waives service of notice of rule on behalf of the concerned respondents.

2. The issue involved in the present petitions is similar and identical in nature, hence, the facts leading to filing of these petitions are taken from Special Civil Application No.18778 of 2019, which read as under :-

2.1 Prior to 1951, land bearing Survey Nos.248, 269, 276, 351 and 358 situated at village Mavjinjava, Tal.Bagasara, Dist.Amreli, originally belonged to father of the present petitioner i.e. Hadabhai Rafariya, who passed away leaving behind his five legal heirs i.e. Gopalbhai, Gangaben, Dharmaiben, Bhurabhai and Parbatbhai (petitioner herein). After demise of Hadabhai, name of his eldest son - Gopalbhai came to be mutated in the revenue record as the owner of the land in question and the same also came to be certified by the revenue authority vide Entry No.240.

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2.2 It is the case of the petitioners that the name of the eldest son - Gopalbhai Hadabhai was reflecting as the owner and occupier of the land bearing Survey No.248, 269, 276, 351 and 358 of village Mavjijava, Tal.Bagasara, Dist.Amreli, from the revenue records right from the year 1951. The records prior to 1951 are not available with the revenue office as well as not with the petitioner.

2.3 By a family partition, all the lands were distributed amongst three brothers only and the sisters were not given any share and land bearing Survey No.269/3, 270/1 and 351/1 total admeasuring hectare 04-92-71 sq. mtr. came in the share of the petitioner. Thereafter, entry with respect to the aforesaid family partition came to be mutated in the revenue record being Entry No.444 dated 03.03.1966.

2.4 The brothers had not given any share to the sister, hence in the year 2008, the petitioner entered name of his real sister Gangaben i.e. respondent No.4 in the record of rights as co- sharer and an entry with respect to the same also came to be mutated in the revenue record vide Entry No.2362 dated 15.04.2008, which came to be certified on 03.02.2008. The said entry was mutated on the strength of a consent letter given by the petitioner and it was specifically mentioned that the land in question is an ancestral property, though the revenue officer, while certifying the entry by mistake has observed that the land in question is self-acquired property of the petitioner.

C/SCA/18478/2019 ORDER DATED: 06/01/2023

2.5 It is the case of the petitioner that the name of only Gangaben i.e the respondent no.4 was mutated because another sister - Dharmaiben had already passed away, way back in the year 1967-68. Hence, name of Gangaben was entered in the revenue record being the real sister. Since the land in question is an ancestral property and at the relevant time share to the sister was not given and, therefore, in the year 2008, the name of real sister - Gangaben came to be mutated in the revenue record.

2.6. The said Gangaben relinquished her rights from the land in question and entry to this effect came to be mutated being Entry No.3220 dated 13.05.2013.

2.7 The District Collector issued a show-cause notice dated 24.05.2018 under the provisions of Rule 108(6) of the Gujarat Land Revenue Rules, 1972 calling upon the petitioner as to why Entry No.2362 dated 03.07.2008 should not be cancelled. Thereafter, by the impugned order dated 06.06.2019 the said Entry No.2362 was cancelled in the revenue record.

2.8 Being aggrieved, the petitioner approached the District Collector and the Special Secretary Revenue Department, however, in both the orders passed by the respective authorities, the order passed by the District Collector was confirmed. Thus, it is submitted that the impugned orders may be set aside on the ground of delay. It is the case of the petitioner that he had challenged the order dated 06.06.2019 passed by District Collector, Amreli, in RTS/Entry/Revision Case

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No.15 of 2018 (wrongly mention in order as case no. 15 of 2018), whereby the District Collector, exercising powers under Rule 108 of the Gujarat Land Revenue Rules, 1972, has cancelled Entry No.2362 dated 05.07.2008 as well as subsequent Entry no.3220 on the ground that the transfer was made in favour of non-agriculturist and, therefore, there is a breach of Section 54 of the Saurashtra Gharkhed, Tenancy Settlement and Agricultural Landa Ordinance, 1949. It is further observed that sufficient stamp fees were also not paid as per the Bombay Stamp and Registration Act. It is also observed that the land in question came to be vested into the State Government for the breach of Section 7S of the Saurashtra Gharkhed Ordinance and also further directed the Mamlatdar, Bagsara to recover the penalty at the rate of three times current Jantri price for illegal transfer of land from the petitioner and Gangaben. It is further directed to the concern authority that if Gangaben has purchased another agricultural land, then entry with respect to the same shall also be taken into suo motu revision. That, the District Collector has also issued direction to the Mamlatdar to initiate proceedings under section 75 of the Saurastra Gharkhed Ordinance.

3. At the outset, learned advocate Mr.Purohit, appearing for the petitioners has submitted that the District Collector, while exercising the suo motu revision powers under Rule 108 (6) of the Gujarat Land Revenue Rules, 1972, after almost 10 years has taken Entry No.2362 dated 05.07.2008 into revision in the year 2018 on assumption and presumption that the petitioner is a non-agriculturist. It is further submitted that almost after

C/SCA/18478/2019 ORDER DATED: 06/01/2023

10 years the District Collector has questioned the revenue entry for the alleged breach of Section 54 of the Saurashtra Gharkhed Ordinance exercising power under Rule 108 (6) of the Gujarat Land Revenue Rules. It is submitted that even otherwise assuming that the District Collector had power to decide the agriculturist status of the petitioner then also the same is not permissible in the view taken in the case between Mohamad Kavi Mohamad Amin V/s Fatma Ibrahim, 1997) 6 S.C.C. 71, wherein it is laid down that proceedings under section 84(C) of the Gujarat Tenancy and Agricultural Lands Act, 1948 could not be initiated after a period of one year and such action is without jurisdiction and cannot sustain. It is further submitted that the impugned orders, are required to be quashed and set aside in view of the judgment of this Court in the case of Rinki Shashikant Gandhi vs. Mamlatdar, Vadodara Taluka and Ors., 2012 (2) G.L.R. 1275, since the impugned orders suffer from the delay and latches, the District Collector has initiated suo motu proceedings after a period of 10 years.

4. Per contra, learned Assistant Government Pleader Mr.Kanara, has submitted that the impugned orders may not interfered with since it appears that the sister of the petitioner had relinquished her rights after her name was entered in Entry No.2362 and the respondent authorities has precisely observed in setting aside the said entry.

5. The short issue involved in the present writ petition is that whether the respondent authorities could have exercised the powers after a period of 10 years by invoking powers under

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the provisions of Rule 108(6) of the Gujarat Land Revenue Rules, 1972, after a period of 10 years. The issue is no more res integra and it is a settled proposition of law that such proceedings could not have been undertaken after a belated period.

6. The Coordinate Bench of this Court in an analogous issue in the case of Rinki Shashikant Gandhi (supra), wherein the Collector has exercised the powers by invoking the provisions of Rule 108(6) of the Gujarat Land Revenue Rules, 1972, has observed thus :-

"25. The culmination of the above discussion, in light of the judicial pronouncements and reasons stated hereinabove, leads this court to the following conclusions:

1) The proceedings initiated by the vendor, respondent No.4, after four years of execution of the sale transaction and five years of the registration thereof, suffer from delay, having been instituted after an unreasonably long period of time. As such, the Collector could not have acted upon those proceedings by passing the impugned order.

2) Respondent No.4, being the vendor of the land in question has no locus standi to challenge the entry of sale, in respect of a transaction to which he was a willing party, after pocketing the sale consideration. Under these circumstances, respondent No.4 is not an aggrieved person and cannot be permitted to take undue advantage of his own wrong.

3) The Collector, under sub-rule (6) of Rule 108 is not vested with power to direct forfeiture of the land to the State Government. The direction in the impugned order, to this effect, is beyond the jurisdiction vested in the Collector under Rule 108(6) in R.T.S. Proceedings.

4) The Collector, in exercise of power under Rule 108(6) in RTS proceedings cannot exercise power under the Fragmentation Act, merely by virtue of his position

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or designation or the fact that he may be acting in different capacities under different enactments. Being a quasi judicial authority, the Collector is bound to exercise power within the limits prescribed by the particular enactment under which he is called upon to adjudicate, and cannot transgress the limits of such statutory power, in a manner that overlaps a different enactment. By passing the impugned order, the Collector has transgressed the scope and ambit of the power conferred by sub-rule (6) of Rule 108 of the Gujarat Land Revenue Rules, 1972, and has erroneously exercised power under the Fragmentation Act, which is not permissible.

5) No proceedings have been initiated against the petitioner under the Fragmentation Act and no notice has been issued to her under this enactment. By holding the sale transaction to be violative of the provisions of the Fragmentation Act and directing forfeiture of the land to the State Government, the petitioner has been seriously prejudiced, as it virtually amounts to setting aside the Sale Deed in RTS proceedings."

7. Thus, the impugned orders are hereby quashed and set aside and the respondent authorities are directed to restore Entry No.2362 mutated in the revenue record on dated 15.04.2008 and the subsequent entries in the revenue records.

8. In view of the above well settled proposition of law, both these petitions are allowed. Rule is made absolute.

Direct service is permitted.

(A. S. SUPEHIA, J) MB/101-102