Gujarat High Court

Dhirubhai Veerjeebhai Patel vs The State Of Gujarat on 30 November, 2023

Author: Nirzar S. Desai

Bench: Nirzar S. Desai

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    C/SCA/19109/2005                                JUDGMENT DATED: 30/11/2023

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       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    R/SPECIAL CIVIL APPLICATION NO. 19109 of 2005
 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
=====================================================
1 Whether Reporters of Local Papers may        YES
   be allowed to see the judgment ?

2    To be referred to the Reporter or not ?                            YES

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

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

=====================================================
       DHIRUBHAI VEERJEEBHAI PATEL & 1 other(s)
                        Versus
           THE STATE OF GUJARAT & 6 other(s)
=====================================================
Appearance:
JAY R TALAVIA(9311) for the Petitioner(s) No. 2
MR. BHAUMIK DHOLARIYA(7009) for the Petitioner(s) No.
1.1,1.2,1.3,1.4,1.5,2
DECEASED LITIGANT for the Respondent(s) No. 5
MR ADITYASINH JADEJA ASSISTANT GOVERNMENT PLEADER for
the Respondent(s) No. 1,2
MR P P KASVALA(2404) for the Respondent(s) No.
3,4,5.1,5.2,6,7
=====================================================
  CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                         Date : 30/11/2023
                           ORAL JUDGMENT

1. By way of this petition, the petitioners have

challenged the order dated 9.4.2001 passed by

the Collector, Amreli and also order dated

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8.7.2005 passed by the Joint Secretary

(Appeals), Ahmedabad in Revision Application

No.8 of 2001.

2. Vide order dated 9.4.2001, the Collector, Amreli

held that the transaction of purchase of land by

the petitioner related to survey No.65 and 132,

of Village Thordi, Taluka Savarkundla,

District : Amreli (hereinafter referred to as

'subject land') to be invalid and quashed and

set aside the mutation entries No.1016 dated

27.12.1990 and entry No.1017 dated 27.11.1990 as

well as entry No.1134 dated 8.6.1994 and entry

No.1164 dated 13.6.1997 and further directed the

land to be restored in the name of original

owner of the land in question. The aforesaid

order was carried in revision by the petitioner

by way of preferring Revision Application No.8

of 2001 linked with Revision Application No.9 of

2001 and vide order dated 8.7.2005, the Joint

Secretary, Revenue Department (Appeals) while

rejecting the revision application preferred by

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the petitioners confirmed the order dated

9.4.2001 passed by the Collector, Amreli.

3. In the petition, notice for final disposal was

issued on 20.9.2005 and thereafter, vide order

dated 13.2.2006, rule was issued and the same

was made returnable on 13.3.2006 and while

issuing rule, the effect and implementation of

the impugned orders were stayed till final

disposal by the Co-ordinate Bench. Thereafter,

the matter was adjourned from time to time and

was taken up for final hearing today.

4. I have heard learned advocate Mr. Bhaumik

Dholariya appearing for the petitioners, learned

Assistant Government Pleader Mr. Adityasinh

Jadeja appearing for the respondents No.1 and 2

and learned advocate Mr. Prakash Kasvala

appearing for the respondent Nos.3, 4, 6 and 7.

5. Brief facts giving rise to the present petition

are as under :-

5.1 At the outset, it was submitted by

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learned advocate Mr. Bhaumik Dholariya that

though the impugned order dated 9.4.2001 is in

respect of two survey numbers of land i.e.

Survey No.65 and 132 of village Thoradi,

Taluka : Savarkundla, District : Amreli, the

present petition is confined only to transaction

related to survey No.132 as the petitioners are

not the purchasers of survey No.65 situated at

village Thoradi.

5.2 The land bearing revenue survey No.132

of mouje Thordi, Taluka Savarkundla, District :

Amreli was running in the name of Shiv Prasad

Guru Bhagvat Prasad in the revenue records. Vide

two different sale deed executed on 15.11.1990,

the petitioner Nos.1 and 2 both purchased two

different parcels of land bearing survey No.132

paiki, mouje : Thordi, Taluka : Savarkundla,

District : Amreli from Shiv Prasad Guru Bhagvat

Prasad through two separate registered sale

deeds, for which two revenue entries Nos.1016

and 1017 came to be mutated on 15.11.1990.

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5.3 After the mutation of the aforesaid

entries in the year 1990, after about eleven

years the Collector, Amreli, issued a show cause

notice dated 23.1.2001, under Section 108(6) of

the Gujarat Land Revenue Rules, 1972 and took

the entry Nos.125, 161, 1016, 1017 and other

entries into suo-motu revision, alleging that

those entries were not in consonance with the

provisions of Land Revenue Code, as the trust

land were sold to the petitioners without

obtaining prior permission of the Charity

Commissioner as required under Section 36 of the

Bombay Public Trust Act. Pursuant to the

proceedings which took place in respect of the

aforesaid show cause notice, vide order dated

9.4.2001, the Collector, Amreli declared the

sale transaction of the subject land in favour

of the petitioner to be invalid and set aside

entry Nos.1016 and 1017 along with other entries

in respect of other sale transactions, which

were also subject matter of the show cause

notice.

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5.4 The petitioners challenged the

aforesaid order dated 9.4.2001 passed by the

Collector, Amreli before the Joint Secretary,

Revenue Department (Appeals) by way of Revision

Application No.8 of 2001. However, the Joint

Secretary, Revenue Department (Appeals) rejected

the revision application preferred by the

petitioner and confirmed the order dated

9.4.2001 passed by the Collector, Amreli vide

order dated 8.7.2005 and hence, both the orders

dated 9.4.2001 and 8.7.2005 are subject matter

of challenge by way of this petition.

6. Learned advocate Mr. Bhaumik Dholariya

appearing for the petitioners made following

submissions :-

6.1 Suo-motu proceedings were initiated

after delay of more than ten years which cannot

be said to be reasonable period as held by

catena of judgments of this Court, the

reasonable period can be said to be maximum

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three years but not ten years in any case.

6.2 The Collector while exercising the

powers under Rule 108(6) of the Rules cannot

decide the validity of breach of other statute.

6.3 Cross utilization of powers at the

hands of Collector is not permissible and as the

Collector has exercised the cross utilization of

powers, the impugned orders are without

jurisdiction and therefore, required to be

quashed and set aside.

6.4 The exercise carried out by the

Collector while passing the impugned order

amongst to surpassing of powers of Charity

Commissioner vested under the Bombay Public

Trust Act.

6.5 In RTS proceedings, the Collector

cannot declare the sale as invalid as such

powers are vested only with the Courts and the

Civil Court and the Collector being a quasi

judicial authority could not have decided the

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question about validity of the transaction. As

the petitioners are bonafide purchasers and the

suo-motu proceedings are initiated after the

death of Shiv Prasad Guru Bhagvat Prasad, who

passed away on 17.10.2000. The show cause notice

is vague as no survey number is mentioned in the

show cause notice.

6.6 The show cause notice was in respect of

mutation entries however, at the end of the

proceedings, the Collector invalidate the sale

transaction and therefore, the order passed by

the Collector dated 9.4.2001 is beyond the scope

of show cause notice and therefore, the impugned

order dated 9.4.2001 is illegal and requires to

be quashed and set aside and subsequent order

passed by the Joint Secretary confirming the

aforesaid order is also illegal and therefore,

both the orders are required to be quashed and

set aside.

6.7 In support of the aforesaid submissions

learned advocate Mr. Bhaumik Dholariya relied

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upon the judgment of this Court in case of Rinki

Shashikant Gandhi Versus Mamlatdar Vadodara

Taluka reported in 2012(2) GLR 1275 and

submitted that such exercise of powers of suo-

motu revision was held to be unreasonable after

delay of four years whereas in the instant case

such powers are exercised after delay of ten

years and therefore, such powers are exercised

beyond reasonable period. By relying upon the

said judgment, he submitted that cross

utilization of powers by taking into

consideration the fact that the sale is invalid

as the prior permission of the Charity

Commissioner in respect of sale of alleged trust

land is not taken and therefore, the sale is

invalid amongst to cross utilization of powers,

which is not permissible in RTS proceedings as

per the aforesaid judgment and therefore, he

prayed for quashing and setting aside of both

the impugned orders.

7. Learned Assistant Government Pleader Mr.

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Adityasinh Jadeja states that the petitioners

did not approach the Civil Court challenging the

order passed by the Collector whereby the civil

rights of the petitioners were taken away by

holding the sale transaction to be invalid and

therefore, the petition is required to be

dismissed on the ground of non-availment of

alternative efficacious remedy.

7.1 Learned Assistant Government Pleader

Mr. Adityasinh Jadeja could not point out

anything either from the record or from any

provisions of law or judgment indicating that

powers exercised by the Collector, Amreli after

delay of ten years can be said to be within some

reasonable time. However, learned Assistant

Government Pleader Mr. Jadeja submitted that as

the illegality was noticed by the Collector,

Amreli that sale transactions on the basis of

which the revenue entries are mutated is

contrary to the provisions of Bombay Public

Trust Act, the show cause notice was issued and

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after hearing the petitioner, as there was no

prior permission from the Charity Commissioner,

the sale was rightly held to be invalid.

8. Learned advocate Mr. Prakash Kashvala appearing

for the private respondents who according to

learned advocate Mr. Kashvala are the villagers

submitted that both the orders passed by the

authority viz. the Collector and the Joint

Secretary are absolutely just, legal and proper

and as by way of those orders the interest of

the beneficiaries of the trust is taken care of,

the orders passed by the Collector and the Joint

Secretary impugned in this petition may not be

interfered with and the petition may be

dismissed.

9. I have heard learned advocates appearing for the

parties and perused the record. Upon perusal of

record, I found that two parcel of land bearing

survey No.132 of the subject land was purchased

by the petitioners No.1 and 2 by way of two

separate sale deeds in the year 1990 and

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consequential revenue entries were also mutated

as entry No.1016 and 1017. The petitioner

continued to enjoy the possession of the

aforesaid land uninterruptedly till the show

cause notice initiating suo-motu revision were

served upon them. It is an undisputed fact that

the show cause notice was issued to the

petitioner on 23.1.2001 i.e. after delay of

eleven years after the sale deed was executed in

the year 1990.

9.1 Further, the record also indicates that

what was considered by the Collector while

holding the sale transaction in favour of the

petitioner as invalid was that the petitioners

did not obtain prior permission from the Charity

Commissioner to purchase the land which belongs

to the trust. However, there is no justification

coming forward from any of the orders either by

the Collector or by the Joint Secretary that

which statute provides the quasi judicial

authority to decide the question about validity

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of a sale transaction as the same would fall

within the domain of judicial proceedings.

9.2 In case of Rinki Shashikant Gandhi

Versus Mamlatdar Vadodara Taluka reported in

2012(2) GLR 1275 (Supra) more particularly, in

paragraph No.11 of the said judgment, the Court

has observed as under :-

"11. It cannot be lost sight of, that proceedings were initiated at the behest of respondent No.4 after five years of execution of the Sale Deed and four years of the registration of the said document. In the interregnum, respondent No.4 sat silently, without any demur. The period of limitation prescribed for filing an appeal under sub-rule (5) of Rule 108, is 60 days. The law is now settled that proceedings cannot be initiated after an unreasonable period of time. What constitutes a reasonable period of time is to be seen from the facts and circumstances of the case."

9.3 As regards the contentions of cross

utilization of powers, the Court observed in

paragraphs No.22 to 24 as under :-

"22. The nature of the power to be exercised by the Collector under RTS proceedings is clear from sub- Rule (6) of Rule 108 reproduced hereinabove. As already held by this Court, the said power

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does not extend to directing forfeiture of the land in question. A more important aspect of the matter is : under which proceedings is the Collector empowered to exercise the power conferred by Rule 108(6)? Under this sub-rule the Collector is exercising power under RTS proceedings regarding disputed mutation entries and certainly not under the provisions of the Fragmentation Act. The impugned order of the Collector very clearly reveals that he has come to the conclusion that the sale transaction between the petitioner and respondent No.4 is hit by the provisions of the Fragmentation Act, and on this ground has directed forfeiture of the land to the State Government.

23. The Fragmentation Act is a self- contained Code that lays down a detailed procedure to be followed by the competent authority in the event that its provisions are found to be violated. It also envisages giving of notice to the person concerned. The circumstances under which the fragment of land shall vest in the State Government is also laid down. It is significant to note in the present case, that no proceedings, whatsoever, under the Fragmentation Act have been initiated against the petitioner. The proceedings initiated by respondent No.4 are RTS proceedings, under the Gujarat Land Revenue Rules, 1972. In exercise of pwer under sub-rule (6) of Rule 108 in RTS proceedings, the Collector cannot exercise power under the Fragmentation Act. Being a quasi judicial authority, the scope of exercise of power by the Collector is confined to the extent permitted by sub- Rule (6) of Rule 108. He is not empowered to transgress the limits of the power vested in him under RTS proceedings, as the power to be exercised by him is a

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statutory power. It may be possible that the Collector was under the mistaken notice that the power he exercises is inherent in his position or designation, as Collector. If it is so, such a notion is an absolutely erroneous one. The Collector cannot, by virtue of his position or designation, exercise power under another enactment when he is dealing with a matter under a different enactment. The position of law in this regard is no longer res integra.

24. In Evergreen Apartment Co-operative Housing Society v. Special Secretary, Revenue Department, Gujarat State (Supra), this Court has held :

" 12 **** **** ***** So the entire inquiry and revisional power has to proceed under the Bombay land Revenue Rules and not under any enactments like the Bombay Tenancy and Agricultural Lands Act, Urban Land (Ceiling and Regulation) Act or Bombay Prevention of Fragmentation and Consolidation of Holding Act. It is quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue record have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by competent authorities

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under special enactments.

Independently the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transaction recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Thus on this second ground also the orders of the Collector and the Additional Chief Secretary appear to be beyond their jurisdiction. The Additional Chief Secretary has held that the sale by auction was not consistent with the provisions of Section 27 of the Urban Land (Ceiling and Regulation) Act. Section 27 relates to prohibition of transfer of any urban land with a building thereon. Apart from legal position that Section 27 has been struck down as ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in the present case. Thus, the order of the revisional authority has proceeded on a misconception of relevant legal provisions also."

(emphasis supplied)"

9.4 From the aforesaid observations made in

paragraph No.11 and 22 to 24, it is clear that

RTS proceedings cannot be initiated beyond a

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reasonable period. In case of Rinki Shashikant

Gandhi (Supra) the initiation of RTS proceedings

after five years of execution of sale deed and

four years of registration of the said document

were held to be initiated beyond a reasonable

period of time. In the instant case, RTS

proceedings were initiated after a period of

almost more than ten years. Further from the

observations made in paragraph No.22 to 24, it

is clear that cross utilisation of powers by

revenue authority is impermissible and thereby

to hold the action to be invalid. Further, on

perusal of record, the Court finds that this is

the only reason that the sale transaction in

favour of the petitioner is in violation of the

provisions of Bombay Public Trust Act as the

prior permission of the Charity Commissioner was

not sought by the petitioner before purchasing

the land and therefore, the transaction was held

to be invalid and entries were cancelled.

9.5 Upon inquiry from the Court, learned

advocate Mr. Dholaria as well as learned

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advocate Mr. Prakash Kashvala, both submitted

that till date there is no civil suit whereby

the aforesaid transaction in favour of the

petitioner is challenged on the ground that

prior permission of the office of the Charity

Commissioner is not sought or any other ground

and therefore, in absence of there being any

challenge to the aforesaid sale deed and in

absence of there being any judicial order

invalidating the aforesaid transfer in favour of

the petitioner, the Collector being a quasi

judicial authority was not justified in holding

the transfer invalid by passing the impugned

order, even the Joint Secretary also has

committed an order by confirming the aforesaid

order.

10. In view of above, the petition succeeds. The

impugned orders are required to be quashed and

set aside on the ground of exercise of powers

after unreasonable delay of ten years as well as

on the ground of cross utilization of powers by

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the Collector in the RTS proceedings which is

not permissible as per the law and therefore,

both impugned orders dated 9.4.2001 passed by

the Collector, Amreli as well as order dated

8.7.2005 passed by the Joint Secretary, Revenue

Department are here by quashed and set aside.

The present petition is allowed. Rule made

absolute.