Ishwarbhai Chandubhai Patel vs State Of Gujarat
2023 Latest Caselaw 757 Guj

     C/SCA/1229/2016                              ORDER DATED: 31/01/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 1229 of 2016
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               ISHWARBHAI CHANDUBHAI PATEL & 1 other(s)
                              Versus
                    STATE OF GUJARAT & 6 other(s)
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Appearance:
MR JIGAR P RAVAL(2008) for the Petitioner(s) No. 1,2
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3,4,5,6.1,6.2,7.1,7.2,7.3
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                            Date : 31/01/2023
                             ORAL ORDER

1. In the present writ petition, the petitioners have prayed for the following relief:

"8(B) Your Lordships may be pleased to quash and set aside the orders Annexure-D1 dated 12/8/2013 passed by the Prant Officer, Bayad and the impugned judgement and order at Annexure-A dated 27/11/2015 passed by the respondent no.2 in Revision Application No.MVV/CON/SDR/10/2013."

FACTS

2. It is the case of the petitioners that the predecessors i.e. the private respondents were the owners and occupiers of the land admeasuring 37,332 sq.mtrs., forming part of Block No.97 of village Ahmedpura, Taluka Bayad, Dist. Sabarkantha. There are other 17 individuals, who are also holding their respective lands in the same block. The petitioners purchased the said land by a registered sale deed dated 20.06.1997

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and an entry to that effect being Entry No.706 was mutated in the revenue records and was certified on 21.10.1997. In the year 2013, the Mamlatdar, Bayad initiated proceedings under the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short "Fragmentation Act") and thereafter, the Prant Officer, Bayad vide order dated 12.08.2013 concluded that the sale transaction, which was made in favour of the petitioners, is contrary to the provisions of the Fragmentation Act more particularly, under Section 9(1) thereof and further, directed the petitioners to pay costs of Rs.250/- and also ordered to restore the original position of the land. Being aggrieved, the petitioners assailed the said order by filing Revision Application No.MVV/CON/SDR/10/2013 before the respondent No.2 - Special Secretary, Revenue Department (SSRD). The revision application came up for hearing for interim relief and in the month of November, 2013 the petitioners were granted interim injunction in their favour. Thereafter, by the impugned order, the SSRD dismissed the revision application filed by the petitioners.

3. Learned advocate Mr.Raval appearing for the petitioners, at the outset, has submitted that the impugned orders are required to be quashed and set aside since the Prant Officer, Bayad had

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initiated the proceedings under the Fragmentation Act by exercising suo moto powers, after passage of more than 15 years. It is submitted that by the judgement and order of the Division Bench of this Court in the case of Labhubhai Valjibhai Gajera Vs. Secretary (Appeals), Revenue Dept., Gujarat State and Ors., 2011 (1) GLH 432 that the Division Bench has set aside such exercise of powers under the Fragmentation Act on the ground of delay, as the proceedings were initiated after a period of 3 years. He has placed reliance in the judgement of the Coordinate Bench of this Court in the case of Paliben Wd/o Kikubhai Kuvariyabhai Koli Patel Vs. Dy Collector, Valsad , 2013 (1) GLR 231. Thus, it is submitted that the impugned orders may be set aside.

4. There are further orders referred by him however, the same are not incorporated.

5. In response to the aforesaid submissions, learned AGP has submitted that the impugned orders do not require any interference since the SSRD has rejected the revision application filed by the petitioners by examining the revenue entries as well as the sale deed executed by the petitioners and the private respondents. It is submitted that when it is found that the sale transaction was in violation of the Fragmentation Act, the Prant Officer, Bayad had exercised the

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powers questioning the sale proceedings. Thus, it is submitted that the impugned orders may not be set aside.

6. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.

7. In the present case, the facts have suggested that the petitioners purchased the land in question by the registered sale deed on 20.06.1997 and entry to that effect was mutated vide Entry No.706 and certified on 21.10.1997. However, the Prant Officer, after delay of almost 15 years, has initiated the suo moto proceedings alleging that the sale transactions are contrary to the provisions of the Fragmentation Act.

8. At this stage, it would be apposite to refer to the observations made by the Division Bench of this Court in the case of Labhubhai Valjibhai Gajera (supra), which read as under:

"7. The appeal can be disposed of on short ground viz. delay in initiating the proceedings under the Act. Before proceeding to address the said issue, we must note that so far as other contentions of the appellant and the conclusions by the learned Single Judge are concerned, we agree with and we do not see any error or infirmity in the the findings recorded by the learned Single Judge and/or in the reasons in support of the conclusions. Since we agree with the reasons as well as the findings of the learned Single Judge in respect of the other contentions of the appellant, we have not discussed the said aspects at

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length and/or recorded our separate views and conclusions.

7.1 The appellant has, inter-alia, contended that the impugned proceedings and the impugned order are vitiated by delay in initiating the proceedings and in exercising the power inasmuch as the disputed transaction was entered into and executed in February-2002 whereas the proceedings came to be initiated, for the first time, by virtue of notice issued in 2005 i.e. after more than about three years and that therefore, the impugned order is vitiated due to delay. So as to support the said submission, the learned counsel for the petitioner relied upon the judgment in the case between Ranchhodbhai Lallubhai Patel vs. State of Gujarat [1984(2) GLR 1225].

8. The power conferred under the statute should be exercised within prescribed limitation and if the statute does not prescribe any time limit then within reasonable time except the cases involving fraud and/ or suppression of material facts i.e. the cases in which the petitioner is alleged to have caused fraud and/or suppressed material facts. This plea is thus not available to him who himself is guilty of fraud or suppression of facts. This is too well settled position of law to need reiteration.

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14. In present case, it is not in dispute that the proceedings have been initiated after delay of more than about three years, it is also not in dispute that in present case there is no allegation of fraud and/or suppression of facts by the petitioner. In present case, it is also not the case of the respondent authorities that the authorities were not aware about the transaction.

Having regard to the fact that the proceedings came to be initiated after delay of more than about three years and that the petitioner is not guilty of fraud or suppression the impugned proceedings and order cannot be said to have been initiated within reasonable time inasmuch as undisputedly the notice

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under the Act was issued in 2005. The proceedings and the order are hit by the vice of delay.

15. In view of the facts of present case, the appeal, on this limited ground, deserves to be allowed. It appears that the appellant herein had raised the said contention before the learned Single Judge in the petition as well. Even in the reply affidavit filed by present opponents, the factual assertion by the petitioner-appellant viz. with regard to the period when the transaction was entered into and the period when the notice under the Act was issued, are not denied or disputed. Thus, the factual aspects regarding the period of transaction and impugned notice being not in dispute, are established, which in turn establish that the impugned proceedings and the orders by the authorities are hit by the vice of delay of more than about 3 years. Hence, in view of the decision of the Hon'ble Apex Court in the case of Mahamad Amin (supra) the initiation of proceedings under the Act after delay of three years is, in the facts of present case, not found to be within reasonable period. "

9. In the case of Paliben Wd/o Kikubhai Kuvariyabhai Koli Patel (supra) the Coordinate Bench of this Court has held as under:

"8. As regards next contention advanced by the learned Advocate Mr. Shah, what is required to be noted is that the petitioner purchased the land in question in the year 1986. The proceedings came to be initiated against the petitioner for breach of the provisions of the Act in the year 1994 that is after the period of more than eight years. The period of eight years cannot be considered to be the reasonable period for the purpose of initiating proceedings under the Act. By now, it is well settled position of law that any authority either under the provisions of the Fragmentation Act or under the provisions of the Saurashtra Gharkhed Ordinance or under the Bombay Tenancy Act, wants to initiate proceedings for deciding the validity or otherwise of any transaction, such proceedings are required to be initiated within reasonable period. In fact, as held

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by the Hon'ble Supreme Court, one year is reasonable time but some time it differs from facts to facts but it cannot be said that the period of eight years by any stretch of imagination would fall within the arena of reasonable period. Transaction in question though contrary to the provisions of the Act, still, the fact remains that the competent authority did not think it fit to initiate the proceedings for about eight years. IN my view, the period of eight years in the facts of the present case was grossly unreasonable long period so as to make the competent authority disentitle to initiate the proceedings under the Act. In the case of Ranchhodbhai (supra), this Court has held as under:

"It is true that no period of limitation is laid down by the said Act indicating as to within what period, the concerned authorities can initiate proceedings under sec. 9.It is also true that power given to the authorities is coupled with duty to act as per the provisions of section 9 if power under sec. 9 can be validly invoked. But that does not mean that power can be exercised at any time, may be after years or decades. Exercise of power has to be justified on the facts of each case and if on the facts of a given case, it is found that exercise of power after lapse of sufficiently long period between the impugned transaction and the date of exercise of that power would be arbitrary and unreasonable due to the fact that in the meanwhile parties had changed their position irretrievably obvious of any possibility of future action by the authorities functioning under the Act on account of prolonged inaction on the part of these authorities and any attempt to put back the clock would result in irreparable injury to the concerned parties, then, such exercise has to be treated to be unjust and illegal. In that view of the matter, as seen above, on the facts of this case, the exercise of the power under sec. 9 against the petitioner would be unreasonable and arbitrary. Only on this short ground and without going into the other contentions which are sought to be canvassed by Mr. Sanjanwala in support of the petition, this petition will have to be allowed."

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10. It is also pertinent to note that the judgement, on which the SSRD has placed reliance, is also overruled subsequently in the case of Valjibhai Jagjivanbhai Vs. State of Gujarat, 2005 (2) GLH 34.

The Division Bench of this Court has held thus:

"23. Looking to the aforesaid different situations, there is no-doubt in our mind that even the void transaction under section 9(1) if allowed to remain effective for considerably long period, the authority named therein will be precluded from initiating proceedings to annul it. The ratio laid down by the Apex Court in the decisions cited by Mr. Patel clearly states that even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed to remain for a considerable period and with the passage of time it brings about several changes, creating valuable rights in favour of considerable section of people, it is difficult to accept the proposition that despite the change the Collector would be entitled to exercise power under sub-section (3) of section 9 of the Act. Similar observations can also be made with regard to the land wherein no change is brought about, but number of years have passed after the transfer against the provisions of the Act has taken place. In our opinion when the things have been allowed to remain as such for years together, the purchaser cannot be deprived of his possession so as to render indirect benefit to the seller who was equally responsible for entering into such illegal transaction. Thus, in our view, when the authority had considerable opportunities to know about the transaction and despite that, has not taken any action thereon for years together, such authority cannot be allowed to exercise powers conferred upon it at a belated stage. The concept of reasonableness of time will equally apply in such cases. We, therefore, hold that even powers conferred upon the Collector under sub-sections (2) and (3) of section 9 are required to be exercised within a reasonable time."

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11. Hence, it is well settled proposition of law that the authorities, while exercising powers under the provisions of the Fragmentation Act or under any other provisions of the Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands Ordinance, 1949 or the Gujarat Tenancy and Agricultural Lands Act, 1948 or under the Gujarat Land Revenue Code, 1879, cannot exercise suo moto powers, after unreasonable period.

12. The impugned order dated 12.08.2013 passed by the Prant Officer, Bayad as well as the order dated 27.11.2015 passed by the SSRD in Revision Application No. MVV/CON/SDR/10/2013 are hereby quashed and set aside.

13. The writ petition succeeds. Rule made absolute.

Sd/-

(A. S. SUPEHIA, J) NVMEWADA