Vikas Hirji Shah vs Special Secretary Of Revenue ...
2023 Latest Caselaw 238 Guj

     C/SCA/20049/2017                               JUDGMENT DATED: 10/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 20049 of 2017

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA                                     Sd-
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                               NO

2     To be referred to the Reporter or not ?                             NO

3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                   NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution                 NO
      of India or any order made thereunder ?

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                        VIKAS HIRJI SHAH
                             Versus
       SPECIAL SECRETARY OF REVENUE DEPARTMENT & 4 other(s)
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Appearance:
MS TEJAL A VASHI(2704) for the Petitioner(s) No. 1
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
UNSERVED EXPIRED (R) for the Respondent(s) No. 5
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                              Date : 10/01/2023
                              ORAL JUDGMENT

1. In the present petition, the petitioner has assailed the order dated 22.11.2016 passed in RTS Review Case No.8 of 2016 by the respondent no.2 as well as the order dated 11.08.2017 passed by the respondent no.1 in Revision Application No.MVV/HKP/VLS/88/2017.

2. While issuing Rule, this Court in the order dated 02.07.2019 has specifically recorded the fact that there is a delay of 34 years in

C/SCA/20049/2017 JUDGMENT DATED: 10/01/2023

challenging the entry mutated in the revenue record.

3. Learned advocate Ms.Tejal Vashi appearing for the petitioner has submitted that the issue is squarely covered by catena of judgments of this Court as well as by the Apex Court. She has placed reliance in the case of Rinki Shashikant Gandhi vs. Mamlatdar, Vadodara Taluka and Ors., 2012 (2) GLR 1275. She has submitted that the entry no.2884, which was mutated on 19.06.1982 is required to be reviewed and set aside by passing the impugned order after a period of 35 years and hence, it is requested that the impugned orders may be set aside.

4. Per contra, learned AGP Mr.Parikh, while vehemently opposing the writ petition, has submitted that no illegality and infirmity is found in the order passed by the respondent authority since it was realized that initially the land belonged to the Dehri Gram Panchayat, which has passed a resolution dated 29.05.1982. It is submitted by him that when the petitioners sought NOC from the said Panchayat for conversion of the said land into non-agricultural land on the basis of some Resolution No.14 passed by the Panchayat, the respondent authority initiated suo motu review proceedings and cancelled the aforesaid entry and further directions were issued to mutate the land in the name of the State Government. Thus, it is submitted that the delay may not be considered in setting aside the impugned orders passed by the respondent authority.

5. The short issue, which emanates for consideration in the present petition, is whether the respondent authority, while exercising the powers under the provisions of Rule 108(6) of the Gujarat Land Revenue Rules, 1972 (for short "the Rules") could have satisfied the Entry No.2884,

C/SCA/20049/2017 JUDGMENT DATED: 10/01/2023

which was mutated on 19.06.1982 after a period of 35 years.

6. The issue raised in the present writ petition is no more res integra in catena of judgments passed by this Court and the Apex Court, it has been held that even after there is no limitation period provided in exercising of such powers as exercised by the Collector, such powers are to be invoked within a reasonable time. In the present case, the Collector has initiated suo motu review proceedings by the impugned order and has reviewed the Entry No.2884 and cancelled the same by the order dated 22.11.2016 and further directed that the said land to be vested in the State Government.

7. At this stage, it would be apposite to refer to the observations made by this Court in the case of Rinki Shashikant Gandhi (supra), in an analogous facts, while examining the provisions of Rule 108(6) of the Rules, 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:

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.

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. 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

C/SCA/20049/2017 JUDGMENT DATED: 10/01/2023

impugned order, to this effect, is beyond the jurisdiction vested in the Collector under Rule 108(6) in R.T.S. Proceedings. 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 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. 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 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. 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."

8. In the case before the Coordinate Bench, the proceedings were initiated by invoking the powers under the Rule 108(6) of the Rules after a period of 4 years of the sale transaction and 5 years of the registration, this Court has observed that such proceedings could not have been instituted after an unreasonable long period. This Court has also held that the Collector under sub-Rule (6) of Rule 108 of the Rules is not vested with power to direct forfeiture of the land to the State Government and the same is exercised beyond the jurisdiction vested under the said Rules.

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9. The petitioner is the subsequent purchaser of the land and he purchased the said land on 30.11.2012 and an Entry No.4764 came to be mutated in the revenue records recording the name of the petitioner, which was also cancelled on 09.02.2013 and again, on 22.02.2013, an Entry No.4800 came to be mutated recording the same in favour of the petitioner, which was cancelled on 22.05.2013. Such cancellation was subject matter of challenge by the present petitioner before the Deputy Collector by filing an Appeal No.110 of 2013, which was allowed by the Deputy Collector and the order of the authority below cancelling the Entry No.4800 was set aside and the matter was remanded to the Mamlatdar for mutating the entry as per the record of rights. Such order was passed by the Deputy Collector on 09.07.2013 and accordingly an Entry No.4840 came to be mutated. It is only when in the year 2015 i.e. on 12.12.2015 when the Gram Panchayat passed a resolution giving NOC to the petitioner and the petitioner made an application to the Collector, Valsad under Section 65(b) of the Gujarat Land Revenue Code, the suo motu review proceedings has been initiated by the Collector.

10. Thus, the aforesaid action runs contrary to the settled proposition of law. Hence, the writ petition succeeds. The impugned order dated 22.11.2016 passed in RTS Review Case No.8 of 2016 by the respondent no.2 as well as the order dated 11.08.2017 passed by the respondent no.1 in Revision Application No.MVV/HKP/VLS/88/2017 are hereby quashed and set aside. As a sequel, the original Entry No.2884 shall be restored to its original status. Rule is made absolute.

Sd-

(A. S. SUPEHIA, J) ABHISHEK/121